When an employee is no longer employed by your organisation and you have provided a reference on request, what further duty do you owe them?

The High Court  has ruled that employers may be liable to an ex-employee for negligent misstatement several years after the employee has left. The case of McKie v Swindon College has brought the rule on providing references and information on ex-employees under the microscope and has widened the duty of care.

M was a teacher at Swindon College for 7 years until 2002 when he left and went to work for the University of Bath. He left with a good reference and his new position involved overseeing degree courses in Further Education Colleges, including his previous place of work, Swindon College (six years after). The new director of HR at Swindon College contacted the University by email to inform them that M was no longer permitted to attend at their establishment due to safeguarding issues and previous staff relationship problems experienced during his 7 year term of employment. M had apparently left the College before any formal action was taken to investigate or resolve these serious concerns. On the basis of this email from M’s previous employer, he was summarily dismissed.

After hearing the evidence, the judge concluded that:

• M was a well respected colleague at Swindon College;
• that the email was ‘fallacious and untrue’;
• and as a result, M had suffered the loss of his job.

The conclusion infers that the College owed M a duty of care not to make false statements about him that could ultimately and unnecessarily damage the relationship with his current employer. The passage of time was considered irrelevant, as the comments were still the reason for M’s loss and economic damage.

This serves as a useful reminder of the importance of providing accurate references for employees initially and on further requests for information. Although in this case the email was technically not a reference in the usual form, the information it contained described the character of the employee and made serious allegations as to his suitability to work around children and his current employer relied on this.

All employers will know how heavily references are relied on in the process of recruiting teaching staff. With anti-discrimination legislation in force (Equality Act 2010), recruitment is now a process that is monitored closely and scrutinised at every stage. If an inaccurate reference or future comment costs an ex-employee their job, the employee’s previous employers could be found liable if allegations are found to be untrue.