18 March 2019 - Article
The principle that reference-givers must choose their words carefully to avoid liability for negligence is well known to HR professionals. The key point in the recent High Court case of McKie v Swindon College, is that the principle that careless words can give rise to a claim for damages for negligence, is not confined to references. It will equally apply to other forms of communication about former employees that cause financial loss, such as, in Mr McKie’s case, a carelessly written e-mail. In this case, the judge found that the College was liable in negligence to Mr McKie, who had worked for the College six years earlier, after his new employer, the University of Bath, acted on the e-mail by ending Mr McKie’s employment.
Mr McKie worked at Swindon College between 1995 and 2002. His career progressed well, he was promoted and received bonuses and when he left to go to work for Bath City College, he received excellent and detailed references. He worked at Bath City College for five years, went briefly to Bristol City College and then in May 2008 took up a new role at the University of Bath.
The University of Bath oversees degree courses at certain further education colleges, including Swindon College. Part of Mr McKie’s duties in his new post involved liaising with and visiting these colleges, including Swindon. On 5 June 2008, shortly after he had started work at the University of Bath, an email was sent by Robert Rowe, Human Resources Manager at Swindon to his equivalent at the University of Bath. It said:
“Further to our telephone conversation I can confirm to you that we would be unable to accept Rob McKie on our premises or delivering to our students. The reason for this is that we had very real safeguarding concerns for our students and there were serious staff relationship problems during his employment at this College. No formal action was taken against Mr McKie because he had left our employment before this was instigated. I understand that similar issues arose at the City of Bath College.”
The University met with Mr McKie to discuss the concerns raised by the e-mail and then decided to dismiss him by means of a procedure that the judge in the High Court described as wholly unfair. However because Mr McKie had only a few weeks service at the time, he had no remedy for unfair dismissal against the University. He did, however, instigate proceedings against Swindon College for issuing the e-mail, which he claimed was false, misleading, inaccurate and unfair. His case was that the College had acted negligently by issuing such an e-mail without checking its truthfulness or accuracy.
The High Court found that there was no evidence that the statements Mr Rowe made in the e-mail were true. He had not worked with Mr McKie and had no personal knowledge of him or his work history. It was not clear what the basis for the e-mail was nor why Mr Rowe had written it. At the hearing Mr McKie called eight witnesses who testified to the high standard of his work at Swindon College, none of whom had any knowledge of the kinds of concern mentioned in the e-mail. By contrast, the witness evidence produced by the College did not support the claims it made about Mr McKie. The High Court therefore decided that the e-mail had been produced carelessly: ‘we can see that the procedure adopted at Swindon College giving rise to the sending of the email, can be described as slapdash, sloppy, failing to comply with any sort of minimum standards of fairness, certainly any such standards as would be recognised by any judicial body taking decisions and disseminating information about another individual’.
Having decided that the e-mail had been carelessly written, the Court then had to consider whether it made any difference that the e-mail was not actually a reference. Previous cases had established that a careless reference did give rise to a possible claim; did the fact that the statement was not a formal reference make any difference? The High Court thought not. There was no reason to limit the principle to statements that were formal references. Moreover, by choosing to write the statement as it did, the College assumed duty of care to Mr McKie, even though there was no longer any employment relationship between them. It was foreseeable that in the circumstances the e-mail might have an effect on Mr McKie’s employment and that he might therefore suffer economic loss. The College was therefore liable to compensate Mr McKie for loss arising from its negligence.
One issue that did not arise in this case, but might in others, was the possibility that the University might also have had a claim against the College if it had been able to show that it had suffered financial or other loss as a result of having terminated Mr McKie’s employment on the strength of negligent statements by the College. These losses might include unrecoverable recruitment fees, or other costs of recruiting a replacement.
The message of the case is clear:
- Making a statement that might affect the employment or employment prospects of an individual without first checking the accuracy of what you are saying may lead to a claim for damages for negligence;
- This is particularly so if the writer of the statement did not have personal knowledge of the matters addressed in the statement and does not fully investigate beforehand;
- The risk arises whenever it is foreseeable that some financial loss might result from the steps a third party might take as a result of the statement, such as terminating someone’s employment or not offering them a job;
- The mere fact that some years have elapsed since an individual worked for the organisation on whose behalf the statement is being made will make no difference as long as the ex-employee can show loss and the loss has been caused by the negligent statement;
- Although the case deal with an employment relationship, the principle it sets out could conceivably be extended to other relationships where a duty of care can be shown. This could possibly cover individuals other than former employees such as non-executive directors, consultants or volunteers.