In the recent case of McKie v Swindon College, the High Court found that the college was liable in the tort of negligent misstatement for careless, fallacious comments it made about Mr McKie, a former employee.
Case law already establishes that an employer who provides a reference owes the employee a duty to take reasonable care in the preparation of the reference. However, this case illustrates that such a duty can also arise in a non-reference situation.
Mr McKie had been an exemplary employee of the college and received a fine reference when he left to join Bath University. Mr McKie’s new job at Bath involved contact with Swindon College. An email referring to Mr McKie was sent to Bath on behalf of the college, the contents of which the Court found to be “fallacious and untrue” and its preparation “sloppy and slapdash”. It cost Mr McKie his job at Bath.
Although this was not a reference case, the Court held that a duty of care applied. The college realised that its email might have an impact on Mr McKie’s employment, so the damage caused was foreseeable. In addition, the college was purportedly communicating information arising from Mr McKie’s employment, so there was sufficient proximity between them for a duty of care to arise, even though six years had passed since their relationship had ended. Accordingly, the Court found that it was fair, just and reasonable to impose a duty of care on the ex-employer in the circumstances.
