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Liability for a reference that was not a reference

Posted on 26th May 2011
Case law

A former employee was entitled to compensation for loss following an email about him from his former employer to his current employer, even though it was not a reference.

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McKie v Swindon College [2011] EWHC 469 (QB)


In this case Mr McKie (M) left Swindon College (SC) and eventually found himself employed by the University of Bath (UB). In his role with UB he would be carrying out some work at SC. SC emailed UB to advise them that there had been 'safeguarding concerns' with M and that 'no action was taken ... because he had left' SC's employment. SC also said that they did not want M on its premises. M was dismissed by UB following receipt of the email.

The law

M's dismissal by UB was unfair but, as M had less than one year's service, he could not pursue a claim for unfair dismissal. M therefore brought a claim for negligent misstatement against SC. Negligent misstatement arises when reasonable care is not taken when making statements in certain circumstances; in particular when an employer gives a reference about an employee or ex-employee.

The decision

The High Court concluded that the email sent by SC was not a reference. It was not sent in response to any request for information and was not related to his appointment by UB at all. It was unsolicited. The Court concluded, however, that SC was liable. In doing so it extended the circumstances in which an organisation could be liable for negligent misstatement.

The sending of the email met the criteria in which liability for negligent misstatement would arise. In particular:

  • M had suffered loss as a result of the email; he had lost his job.
  • Despite M having worked at SC some six or so years before the email was sent, as SC purported to rely on the period of M's employment with them, there was sufficient degree of 'proximity' between M and SC for a duty of care to be imposed upon SC in relation to its communications with UB about M.
  • It was fair, just and reasonable to impose a duty of care on SC in relation to its communications with UB.
  • The sending of the email had caused the loss of M's job.

In practice

This case is important. It extends the potential circumstances in which an organisation can be held liable for the loss suffered by employees (and ex-employees) as a result of comments made about them. This is not to say that liability will arise in all cases. Appropriate procedures and checks should be put in place to ensure that any statements made by an organisation about any employee or ex-employee are reasonable, fair and accurate.

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