It is well established following the House of Lords' decision in Spring v Guardian Assurance (1995), that an employer who provides a reference regarding a former employee is under a duty to take reasonable care in making the reference and will be liable to the employee in negligence if the reference is inaccurate and the employee suffers loss as a result. Now the High Court has held, in McKie v Swindon College, that an employer may be liable in the same way when passing information about a former employee to a subsequent employer.

The facts

From 1995-2002 Mr McKie, an art historian, worked at Swindon College. When he left, he received an excellent reference from the College. In 2008, he took up a post at the University of Bath, where his duties involved him liaising with and visiting the College. A few weeks after he started at the University, the new HR Director at the College sent an email to the University which stated that Mr McKie would not be allowed onto the College premises because the College had "safeguarding concerns" in relation to its students and there had been serious staff relationship problems during his time there. He added that Mr McKie had left the College before any formal action could be taken. As a result of the contents of the email, Mr McKie was summarily dismissed by the University.

The decision

The judge was very critical of the College, in particular its failure to carry out an investigation before sending the email. He described the email as "fallacious and untrue", and its preparation as "sloppy and slapdash". Although this case did not involve a reference, the Court held that the College owed Mr McKie a duty of care in passing information about him to a subsequent employer.

The implications

This is only a first instance decision which may not be followed by the appeal courts. It is not yet known whether Swindon College will appeal this decision. However, employers should take great care when communicating about their former employees with their new employers, to ensure that the information they are passing on is accurate.

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