Former employers take care – even if it’s not a reference!
The High Court recently handed down its decision in McKie v Swindon College, in which the court found that a former employer may be liable to pay damages if they provided negligently wrong information about a former employee to his or her new employers.
It is a long-established principle that an employer can be liable to pay compensation for providing an incorrect reference. However, the court’s decision in McKie expands upon that principle to include the situation of a former employer providing false information that is not in the form of a reference.
Mr McKie’s new role would have involved him visiting Swindon College, the premises of his former employer. Swindon College had previously provided positive references about Mr McKie to his new employer and he had a clean disciplinary record. However, the college subsequently sent an email to Mr McKie’s new employers stating that they had concerns about him returning to their site due to “safeguarding issues”. The email was sent by an employee who apparently had no knowledge of Mr McKie’s conduct or behaviour. As a result of this, Mr McKie was dismissed from his new role.
Mr McKie had no rights under employment legislation to pursue his new employer for his dismissal, as he had not accrued at least one year’s continuous service.
It was established that the college’s actions had caused Mr McKie to be dismissed and, as they knew his new employer would rely on the information they provided, Judge Denyer QC stated that “[it] was sufficient to give rise to a duty of care to him as the subject-matter of the advice or reference.”
The High Court found that “damage was foreseeable, the relationship was sufficiently proximate […] there is a causal connection between the negligence […] and the damage whereof the claimant complains.”
It is therefore essential that a former employer considers carefully any information that it is asked to provide to new employers, particularly if they are aware that the new employer will rely on the information given. Whilst employers will likely already be aware of the issues surrounding providing a reference, it is important to note that any requests for information beyond a reference are accurate and do not contain false information. Employers would be well advised to brief their managers and HR teams of this decision and ensure that there is a policy in place governing the provision of any information regarding former employees.
Posted on Sep 15th, 2011 by Lyons Davidson