Be careful what you say about ex-employees…

3 May 2011

The High Court has just handed down judgment in McKie v Swindon College, which represents a timely reminder to all employers to watch what their staff put in emails about ex-employees, even outside the context of “formal” references.

Mr McKie was a lecturer at Swindon College for many years and left with an impeccable, indeed glowing, reference. Sometime after leaving Swindon College he joined Bath University, who had reason to correspond with Swindon College. The Swindon College HR Director decided to send an email to Bath University in the most damaging terms imaginable for Mr McKie. He lost his job with Bath as a result.

The email sent by the Swindon College HR, was found by the High Court to "fallacious and untrue" and its preparation "sloppy and slapdash". Even though it was not a reference Swindon College was found liable for Mr McKie losing his job with Bath University.

Since the case of Spring v Guardian Assurance in the mid-nineties it has been well established that ex-employers can be liable for damage caused by negligent references about their former employees. The McKie case extends that principle by providing the courts and tribunals with authority for the proposition that an employer may be liable to a former employee for damages for negligence when it communicating with a future employer about him or her in any other context.

The lessons are obvious – be careful what you say about ex-employees even outside the context of a “formal” reference. Employers may be held responsible for the results your words have…

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