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Consequences of inaccurate comments about employees

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Most employers are aware that they are under a legal duty to take reasonable care in the preparation and provision of a reference for an employee or former employee. However, the recent case of McKie v Swindon College [2011] EWCH 469 QB shows that employers must also take care when providing any further comment on an employee or former employee.

Mr McKie was employed by Swindon College until 2002. Six years later, he was offered a role at the University of Bath. A few weeks after Mr McKie started working at the university, the HR Director of Swindon College sent an email to the university containing extremely negative comments about Mr McKie. These comments resulted in Mr McKie being dismissed by the university. The email itself was not intended to be a formal reference, as Mr McKie had already started working for the university by then. Mr McKie sued Swindon College, alleging that the email amounted to the tort of negligent misstatement.

The court found that Swindon College owed Mr McKie a duty of care regarding the contents of the email, even though he had left its employment six years previously and the email had not been intended as a formal reference.  The court judge described the contents of the email as ‘fallacious and untrue’, and said that it had been prepared in a ‘slapdash’ manner. Mr McKie was therefore able to recover the losses which arose as a result of the email. This result is perhaps unsurprising – if the same email been sent as a reference for Mr McKie prior to his being employed by the university, the college would certainly have owed him a duty of care in preparing that reference and he would have had a clear claim against it.

The duty to take reasonable care in providing a reference has therefore been extended to apply to employees in a ‘non-reference context’. Employers must take care in making any comments about an employee or former employee, irrespective of the context of those comments or communications. Statements about employees and former employees should be fair and, above all else, accurate. It will be dangerous to make negative comments about a former employee, particularly if such comments cannot be backed up by credible evidence. If an employee or former employee can establish that a statement or comment is incorrect and has been negligently prepared, they may be able to claim damages for loss flowing from that statement or comment.

This case highlights the risks of providing a reference containing more than just dates of employment. Employers should ensure that there are guidelines on who is authorised to give a reference, and the basis on which such references should be given. Those authorised to give references should be made aware that they should stick to the terms of the reference in the event that a further enquiry is made by a potential employer, and that comments, even if made casually, could have a have future impact. If it is necessary to provide more detail than just the dates of employment, the information provided should be strictly factual.

To find out more, please contact Charlotte Stafford at Penningtons Solicitors – Charlotte.Stafford@penningtons.co.uk

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