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Giving an employment reference is not the end of the story

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Every employer has been asked to give an employment reference for a former employee.

As employers, you should always strive to provide a fair representation of your former employee. If you do not take reasonable care when preparing your reference, your business could be liable for any losses suffered by your former employee as a result of your unfair reference.

This principle is not a new one and a recent case (McKie v Swindon College, heard in the High Court) has taken this one step further by including other forms of communication between former and current employers when considering unfair statements about an employee which led to losses suffered by Mr McKie.

Mr McKie worked at Swindon College for 7 years and when he left in 2002 he was provided with an excellent employment reference from them. After leaving the College Mr McKie worked for a number of educational institutions and in 2008 Mr McKie started working for the University of Bath.

As part of his role, Mr McKie was required to visit Swindon College from time to time. However, shortly after he started, the College emailed the University to say that they would not allow Mr McKie onto their premises due to “safeguarding concerns” for their students. The College went on to explain that during his employment with the College there had been “serious staff relationship problems”.

The College’s email to the University stated that Mr McKie had left their employment before any formal action could be taken against him. There was no mention of this in Mr McKie’s employment reference from the College.

In response to the College’s email, Mr McKie was dismissed by the University of Bath. As a result of this job loss, Mr McKie made a claim against the College for negligence.

The High Court found that, on the evidence, the contents of the email had been “fallacious and untrue”. The High Court decided that the College did owe a duty of care to Mr McKie not to make negligent misstatements to a current employer.

If a former employee were to suffer any losses as a result of an employer’s negligent misstatement, any damages awarded to them would be calculated according to the financial loss suffered by the employee. In some cases, this could be quite considerable. The employer who made the negligent misstatements would then be liable for these damages.

The case of Mr McKie serves as a reminder to all employers; always consider very carefully the information you provide about former employees, regardless of the method in which it is given. A “negligent misstatement” doesn’t have to be contained in an employment reference, it can be contained in any form of communication between former and current employers.

For more information, please contact our Employment & HR team on 01332 340 211.

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