Negligent statement

Common law (made by judges) says that employers owe employees a duty of care when writing references. The High Court has now said in McKie v Swindon College that employers may also have to pay damages to employees if they make negligent statements about them to a former employer.

Basic facts

When he left Swindon College in 2002 to go to Bath College, Mr McKie received a glowing reference.

In 2007 he went to Bristol City College to work, but in May 2008 was offered and accepted a post at the University of Bath which oversees degree courses at some further education colleges, including Swindon.

In June 2008, the human resources manager at Swindon College e-mailed the university, saying that because of serious safeguarding and staff relationship problems during his time there in the past, he could not let Mr McKie onto the premises or allow him access to students.

The reason that the college had not taken any formal action against him at the time, he said, was because Mr McKie had left before the allegations could be investigated. He added that he understood that similar issues had arisen at Bath College.

The university invited Mr McKie to a meeting at which he was summarily dismissed. He claimed that the college owed him a duty of care for negligent misstatement.

High Court decision

Mr McKie was able to provide substantial witness evidence to show that the contents of the email had no foundation. For example, his manager at the time gave evidence to the Court that he was well regarded by both staff and students at Swindon and had not, at any time, been the subject of disciplinary action.

The judge agreed with Mr McKie, saying that the evidence used by the college provided no justification for the email, and that the procedure it adopted when sending the email failed to “comply with any sort of minimum standards of fairness”.

It was blindingly obvious, said the judge, that the e-mail would have an impact on Mr McKie’s employment situation. At the very least, the college should have undertaken a formal meeting, discussion and examination of his personnel record and formally recorded the processes that led to the decision, rather than “winging off an email” after talking to two members of staff, who did not even know him when he was at Swindon.

The judge strongly criticised the university’s disciplinary process. Firstly, the letter inviting him to the meeting did not indicate it was a disciplinary meeting which might give rise to dismissal; and secondly, the university included a board member from Swindon college on the disciplinary panel who clearly had a conflict of interest which contradicted every rule about decision making in a quasi-judicial matter.

Unfortunately, for Mr McKie he had insufficient service to make a claim of unfair dismissal, so in terms of the remedy available to him, the court held that, although there was no direct authority on this point, the college owed him a duty of care.

The damage was foreseeable, the relationship was sufficiently proximate, the claim was fair, just and reasonable and there was a causal connection between the negligence in sending the email and the damage claimed by Mr McKie.

The college was therefore liable for its negligent misstatements about him.