Employers will have to watch what they say about former employees to another employer following a recent High Court decision, warn employment law specialists at Browne Jacobson.

Currently employers are under a positive duty of care when they provide a reference for a former employee.

This means they would be liable in negligence if the reference is inaccurate and the employee can show that they have suffered loss as a result such as failing to secure a position or even worst it ends their employment during the probationary period.

Now a judge have ruled in McKie v Swindon College that this duty also extends to statements made about a former employee that are not necessarily in the form of a formal reference.

Mr McKie worked at Swindon College. He left to pursue a career at Bath City College, and was given an excellent reference by Swindon. He later moved on from City College to work at the University of Bath, which had connections with Swindon.

An email, prepared by its current HR Director at Swindon College was sent to the University. Curiously, the email referred to safeguarding concerns with Swindon's students and serious staff relationship problems. It went on to say that no formal action was taken, but the writer also understood that problems with Bath City College had also arisen. As a result The University of Bath terminated Mr McKie's employment with immediate effect. 

The High Court judge described the email as "fallacious and untrue" and held Mr McKie could sue Swindon College for the financial loss he suffered as a result of the very unfair email it had sent, concluding that the consequences of the damaging email were "eminently foreseeable" by Swindon.

James Tait, employment lawyer at Browne Jacobson, commented:

"Employers now need to be very careful indeed when providing comments about former employees whether by way of a reference or not.

"They should not be fooled into thinking that making verbal or email commentary of this nature will simply be forgotten purely because it is not a formal reference.

"Such comments are equally as important as though provided in the form of a reference.

"If slapdash comments are made which cannot be substantiated, and if the employee loses out as a result, the employer can be held to account. In some cases, the damages could be significant.

"Employers would therefore be well advised to review their systems, and ensure that staff are made aware of the fact that if enquiries are made of a former employee then comments, whether by way of a reference or otherwise, should only be made by authorised staff who are aware of the implications of this case."

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