In the recent High Court case of McKie v Swindon College the employer decided to dismiss the employee following a damaging e-mail received from a previous employer. The e-mail effectively made damaging, but unsubstantiated, allegations about the employee and referred to concerns of 'safeguarding issues'. The Judge commented on the power of these allegations in current times and made clear causal links between the email and the resulting dismissal of the employee. It was of course relevant that the industry sector in question was education.
Briefly, the facts were that the HR Manager at Swindon College sent the email on hearing that McKie was newly employed by the University of Bath. Swindon College contracted with the University of Bath in the delivery of a number of courses and in McKie's role he would have had to attend Swindon College to deliver the courses. Essentially, the HR Manager said in the e-mail that this was not acceptable due to their 'safeguarding' concerns. The reference that Swindon College had provided for McKie 6 years earlier had been glowing and all the evidence from ex-colleagues supported the fact that the email was without substance. McKie successfully sued Swindon College for negligent misstatement.
There are a couple of noteworthing points arising from McKie. First, an employer has to be wary about what is said or written about an ex-employee and not just limited to the reference. Employers also need to think carefully about how they deal with departing employees when there are genuinely serious concerns (this especially effects sectors such as healthcare and education and is not limited to the public sector - we only have to think about nursing homes and day care nurseries to put this into perspective).
This recent news from the High Court reminded me of some wise advice from my mother, "Better to say nothing, if you have nothing nice to say."
But I wonder if that is really true in a situation where an employer has to deal with genuine concerns about an employee. All too often it is easier for employers to not deal with proper concerns in relation to employees and dispatch them with a reference, whilst being grateful that they had off loaded a problematic employee. T
The upshot of McKie v Swindon College is that if an ex-employer provides foreseeably damaging and false information about an ex-employee (even though not even strictly in the form of a reference), then the ex-employer may be in breach of a tortious duty of care such that, if the ex-employee sustains loss as a result, the ex-employer may be liable in damages for negligent misstatement.
If you want to read the case here is the link : http://www.bailii.org/ew/cases/EWHC/QB/2011/469.html
