Inaccurate Emails – Employer Beware

In McKie v  Swindon College, the High Court found that Swindon College was liable to pay damages to Mr McKie when it passed on incorrect information about Mr McKie to his new employer.   This sees an extension to the principles which govern the giving of references. 

Mr McKie left Swindon College in 2002 to take up a post elsewhere.  In May 2008, he was offered a job with the University of Bath which he accepted.  As part of the role he would be required to liaise with and visit Swindon College.   After Mr McKie’s appointment, the Director for Human Resources for Swindon College sent an email to the University saying that they would not allow Mr McKie to return to their premises as they were concerned for the safety of the students and that Mr McKie had left the college before any formal action could be taken.  This was not the case.  However, the HR Director’s email resulted in Mr McKie’s summary dismissal.

The High Court considered that the contents of the email were “fallacious and untrue” – Mr McKie was a highly respected member of staff, while he was at Swindon College.   Mr McKie tried to argue that the email amounted to a reference and as a result the College owed him a duty of care not to make any negligent misstatements.  The Court did not accept this argument.  Nonetheless, the Court upheld Mr McKie’s claim.  It was found that there was a sufficient relationship between Mr McKie and the College, even though he had left their employment six years prior.  Further it was foreseeable that Mr McKie would be dismissed as a result of the email.   As a result Mr McKie was able to recover his losses which arose as a result of the inaccurate email.  This extends the law of tort.

Employers must be very careful when commenting on former employees, irrespective of whether it is in a reference situation or not.  If the comment is incorrect and has been negligently provided, an employee who has suffered loss as a result, may well be able to claim damages for any such loss. The adage: “if you can’t say anything nice, don’t say anything at all” springs to mind.