The People Bulletin

This was starkly illustrated in the case of McKie v Swindon College[1], where the college took it upon itself to send Rob McKie’s new employers a damaging email about him after he had only been in his job a few weeks – having left Swindon College several years previously. This case went to the High Court in February 2011. 

Glowing reference 

Rob McKie is an art historian who was employed by Swindon College for seven years. He had never been the subject of any disciplinary action and he resigned in 2002 to take a new job at the City of Bath College. Swindon College gave him a glowing reference, saying that he was ‘highly recommended’ and that the college was ‘sorry to be losing him.’

But behind his back…

Then, in 2008 he changed jobs again, accepting a post as director of studies at Bath University. Part of McKie’s role was to oversee degree courses at various further education colleges, one of those being his former employer, Swindon College. This meant he would be back on their premises in a different capacity. A few weeks after Mr McKie started the new job, the HR director at Swindon College sent an email to his equivalent at the University of Bath saying “I can confirm to you that we would be unable to accept Rob McKie on our premises or delivering to our students. The reason for this is that we had very real safeguarding concerns for our students and there were serious staff relationship problems during his employment at this College. No formal action was taken against Mr McKie because he had left our employment before this was instigated. I understand that similar issues arose at the City of Bath College.”

Untrue allegations

Evidence produced by McKie in court suggested that the content of this email was mainly untrue and the judge found the complaints raised retrospectively by Swindon College as bordering on the ludicrous. He also found that the procedure adopted at Swindon College in sending the email could be described as slapdash, sloppy and failing to comply with any sort of minimum standards of fairness. The absence of a formal meeting, formal discussion, and examination of the personnel record or at least a formal recording of the process that led to the taking of the decision was also queried.

It was therefore concluded that the circumstances surrounding the sending of the email flouted elementary standards of fairness, diligence, proper enquiry and natural justice. 

Economic loss

The email resulted in McKie being called into a meeting with managers at Bath University and being told he could not perform the duties required by the post if Swindon College would not allow him on the premises. For this reason he was summarily dismissed. With less than a year’s continuous employment, Mr McKie had no protection under unfair dismissal legislation.

This information had been provided by Swindon College to the University of Bath who had acted upon it resulted in significant loss to McKie. The question was therefore was whether Swindon College owed any duty to Mr McKie and about the information contained in the email. The judge found that the economic damage suffered by Mr McKie was ‘eminently foreseeable’ and therefore the next question to be considered was whether there was ‘necessary proximity’. He decided that the mere fact that a number of years had gone by did not mean that the relationship between Mr McKie and Swindon College was no longer sufficiently proximate to give rise to any duty of care.

In his closing remarks the judge said “there is a causal connection between the negligence in and about the sending of the email and the damage whereof the claimaint complains” and ruled that Swindon College was liable for the losses suffered by Rob McKie.

Learning points for employers

Maria Burquest, head of the education group at law firm DWF[2] explains:

“This is an important extension of the principle that applies in relation to references. Employers will have to give careful consideration to any communications entered into in relation to ex-employees, regardless of the purpose of that communication. There is no reason why the same principles would not also be extended to conversations that may take place between parties and therefore employers need to think twice about passing even casual comment regarding a former member of staff where there is a prospect that this may have a detrimental effect on that person’s career prospects.” 

[1] www.bailii.org/ew/cases/EWHC/QB/2011/469.html 

[2] www.dwf.co.uk/insight/articles/mckie-v-swindon-college-cause-for-caution-amongst-employers-making-remarks-about-former-employees