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Employers Beware

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A recent decision in the High Court has shown that the duty of care owed by employers to ex-employees extends beyond an obligation to ensure that a reference is accurate and fair.

BalancesIt is well established that employees may claim against former employers in relation to an inaccurate reference which may cause them to lose their new job. The legal position is this - that there is no general duty imposed on employers to provide a reference to a departed employee (although a refusal might in some cases amount to discrimination).

However, once a decision is made to give a reference, the former employer owes a duty of care both to the employee / subject of the reference and also to any prospective new employer who may rely upon it before offering a position.

The case below, McKie v Swindon College is an example.

Mr M was a lecturer who had left Swindon College some years before to work at City of Bath College. He had never been the subject of any disciplinary action or investigation. The reference provided by Swindon College at the time he left was in glowing terms and highly recommended Mr M to his new employer.

Six years later, Mr M was offered a post at another University and part of his role was to oversee degree courses at certain other colleges, one of these being Swindon College and this would involve him attending their premises.

Having started the new job, the HR Director at Swindon College sent an email to his equivalent at Mr M’s new employer which, on any interpretation was highly derogatory and ultimately led to Mr M being dismissed.

Mr M could not of course sue his new employer as he had less than 12 months continuous service and there was no evidence of unlawful discrimination. Instead, he brought an action in the High Court for damages, arguing negligent misstatement or misrepresentation.

One of the questions for the Court was whether or not Swindon College owed any duty to Mr M about the information contained in the email - bearing in mind that this was sent several years after he had left their employment.

The damage or loss to Mr M was foreseeable as of course he lost his job as a direct result and therefore suffered loss of earnings. The Court had to consider whether it was fair, just and reasonable that the law should impose a duty on a former employer in this way and ultimately found in Mr M’s favour.

Paul Grindley Head of the Employment team at Keeble Hawson LLP sums up:

“Employers should therefore be wary of making any comment, whether in writing or not, about an ex-employee regardless of the reason for such comment being made. This may also include passing even a casual comment where there is any possibility that this may have a detrimental effect on that person’s future career prospects.”

“It is not difficult to conceive of situations whereby managers may unwittingly make unjustified derogatory comments in relation to former colleagues which are beyond the confines of a formal reference. As the McKie case shows, such remarks could indeed land their employer in trouble regardless of the length of time which has elapsed since the person left.”

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