Liability for negligent statements about former employees

4 May 2011

It is relatively common knowledge that an employee may bring a claim against his former employer for damages in respect of a negligent reference. Equally, an employer may claim against a former employer for damages in respect of a negligent reference should the individual hired not ‘live up to his billing’. Because of these risks many employers have taken to providing ‘vanilla’ references, confirming only dates of employment and position held.

However, the law has now been taken one step further, with HH Judge Denyer QC confirming (in the case of McKie v Swindon College) that an employee may also bring a claim for statements made by a former employer – even if these do not form part of a reference.

It seems from the facts that, Mr McKie was an exemplary employee of Swindon College, and consequently received a good reference when he left. However, his new post involved some contact with his former employer and the HR Director of Swindon College caused a damaging email about Mr McKie to be sent to his new employer. The email cost Mr McKie his new job.

Notwithstanding the fact that the email was not a reference, it was held that the damage sustained by Mr McKie was foreseeable, that there was a sufficiently proximate relationship and that there was a causal connection between the negligence in both the content of and the sending of the email and the damages that Mr McKie claimed.

The case reinforces the need to ensure that references and statements made about former employees are accurate and fair. Employers relying on a formal ‘vanilla’ reference, with “helpful” additional comments being made by telephone should beware!

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