A recent case before the High Court in England found that employers owe a duty of care to former and future employees in relation not only to references but also to other communications made by an employer about an employee.

In McKie v Swindon College, [2011] EWHC 469 (QB), an art historian worked in various educational institutions. He left work at Swindon College for a job at Bristol City College and thereafter he gained a post at the University of Bath. He received an excellent reference from Swindon College but 6 years later was dismissed from the University of Bath on the basis of communications made about him by Swindon College. Mr McKie raised an action for damages.

The reason for dismissal was the content of an email sent by human resources at Swindon College which mentioned that, with regard to Mr McKie, there was “very real safeguarding concerns for students” and that there had been “serious staff relationship problems” while he had worked at the college. On the basis of the evidence presented before it the High Court suggested that the statements made within the email were untrue.

The court held that although an employer owes a duty of care when providing a reference to both its former employee and to the recipient of the reference, they also owe a duty of care in relation to other communications between an employee’s former and future employer. The court said that Swindon College did owe a duty of care to Mr McKie as it was foreseeable that the email was likely to cause loss or damage to him and that although 6 years had passed there had been a close and direct relationship between Mr McKie and Swindon College and also that it was fair, just and reasonable to impose such a duty of care. The court also said that the email had breached this duty of care particularly as the author did not know Mr McKie personally, had never worked with him and had relied on comments made by other colleagues. The court was also of the view that the procedure in relation to preparing and sending the email was unfair and breached the duty of care owed to Mr McKie.

The decision in this case, although not binding in Scotland, may lead to employers having to take more care when commenting on former employees whether or not in relation to a reference. Where an employer feels it is important to voice such concerns they must ensure there is a fair procedure in place to confirm the accuracy of the statements being made.