Lies, Damn Lies and Employment References

It’s commonly known that employers may be liable in negligence if they give a reference regarding an (ex) employee which is inaccurate or misleading. It is for this reason that many employers will only give brief factual references confirming job title and dates of employment. But what if you receive an informal call about that same employee; can you let your guard down then?


In McKie v Swindon College in the High Court, Mr McKie left his job at Swindon College with an excellent reference in 2002 to take up another position. In 2008, he accepted a more senior position with the University of Bath where he would have to liaise with and visit Swindon College. The new HR director at Swindon College then sent the University a damning email stating that the College would not allow Mr McKie back onto its premises because it had safeguarding concerns in relation to its students and that Mr McKie had left the College before any formal action could be taken. Unsurprisingly, the University then sacked the hapless Mr McKie.


The High Court found that the email from the College was 'fallacious and untrue'. Back in 1994 in Spring v Guardian Assurance it was held that an employer who provides a reference in respect of a former employee is under a duty to take reasonable care in the preparation of that reference and will be liable to the employee in negligence if the reference is inaccurate and the employee suffers loss as a result.


In McKie, the Judge did not accept that the e-mail was in fact a reference, or that the College owed him a duty to take reasonable care in supplying it under the Spring v Guardian Assurance principle. However the Judge held that Mr McKie had suffered financial damage by losing his job with the University. The damage was 'eminently foreseeable'. There was a causal connection between the negligent e-mail and the damage suffered. Furthermore the relationship between Mr McKie and the College was sufficiently close to give rise to a duty of care, even though six years had passed since Mr McKie had been employed there. In the circumstances, it was fair, just and reasonable to impose a duty of care.

Employers should therefore be very careful about what they say about former employees on both a formal or an informal basis, even if the comment is given years later. Employees often have problems gathering evidence to confirm their suspicions about what a former employer may have said about them, nonetheless employers would still be wise to err on the side of caution.