It is well established that an employer owes a duty of care when
providing a reference to both its former employees and to the
recipient of the reference. A failure to take care to provide a
true, accurate and fair reference may expose an employer to an
action for damages by either the former employee or the recipient
of the reference. In Spring v Guardian Assurance PLC the House of
Lords held that an employer who provides a reference for a former
employee owes a duty of care and may be liable in damages for any
economic loss suffered by that employee as a result of their
negligence.
In addition to an employer's duty of care to provide a true,
accurate and fair reference, the Queen's Bench Division's decision
in McKie v Swindon College provides authority for the establishment
of a duty of care in relation to other communications between an
employee's former and future employers. Mr McKie had been employed
by Swindon College. He left Swindon College and was employed by
Bath University. On leaving Swindon College he received a good
reference, as he had been a model employee. The HR director of
Swindon College then unfortunately caused an email to be circulated
regarding Mr McKie, the contents of which were untrue. The email
found its way to Mr McKie's new employer, Bath University, and
caused Mr McKie to lose his job. Mr McKie brought a claim for
damages against Swindon College. The court found that the ex
employer did owe a duty of care because the damage sustained met
the three stage test necessary to succeed in an action in
negligence: -
1. That it was reasonably foreseeable that the actions of
the employer were likely to cause the loss or damage claimed
for;
2. That there was a close and direct relationship between
the parties (legal proximity); and
3. That it was fair, just and reasonable to impose a duty
of care upon the employer.
As a result of the decision in McKie an employer must now be
cautious, not just when providing a reference, but also in any
subsequent communications or correspondence involving discussion of
an ex employee.
Should you require any further information on this topic, or any
other employment issue, please do not hesitate to contact one of
our team.