Tuesday, May 03, 2011

Comments about former colleagues - be careful what you say!

A former employee of Swindon College has succesfully claimed damages after losing his new job because of comments that were made to his new employer by Swindon's HR Manager.

Robert McKie had been employed at Swindon College from 1995 until 2002 when he left to take up a new job at Bath City College. Swindon gave him a glowing reference and based on the evidence at trial of his former colleagues this seems to have been well deserved.

In 2008 after a brief detour to Bristol Mr McKie took up a job at the University of Bath. He had been there about 3 weeks when the HR Manager at Swindon emailed the University of Bath stating that Mr McKie would not be allowed on to Swindon's premises (which was a requirement of his new job) and alleging that there were serious issues over safeguarding students. It alleged that there had been issues over staff relationships and implied that disciplinary action had only not been taken because he had left before it could be instigated. It went on to say that the writer understood similar issues had arisen at Bath City College.

University of Bath subsequently dismissed Mr McKie. He could not claim Unfair Dismissal as he had been there less than 12 months and the Judge's fairly scathing comments about the unfairness of the procedure adopted by the University in dismissing him will therefore have been cold comfort.

He therefore brought proceedings against Swindon College. He could theoretically have claimed for libel but there would probably have been a defence of qualified privelige which would mean he would have had to prove Swindon had been malicious. Instead his claim was put on the basis that Swindon had owed him a duty of care not to make false statements about him in this context.

The Judge found after hearing from a procession of former colleagues at Swindon and what seems to have been some very unsatisfactory evidence on behalf of the Defendant that the comments were not justified.

He went on to find that this was not akin to the situation where an employer gives a reference, in which case there is clear law that a duty of care will usually be owed to the employee. He also found that it was not comparable to the situation where disappointed beneficiaries of a Will can claim against a negligent Solicitor even though they are not the subject of the negligence (the client being the Deceased.)

He treated it as being a novel case not covered by any previous authority and went on to consider whether it was sufficiently analogous to previous cases that it was appropriate to extend the law of negligence to cover this situation. He decided that it was - the Claimant had suffered not insignificant financial loss, the Defendant had clearly realised that this was a possible outcome of the comments and the previous relationship between the parties was sufficiently close that it was fair and reasonable to impose liability on them, even though the employment relationship had ended 6 years before.

He went on to find that the email had caused the loss as the detailed reasons given in the email for excluding Mr McKie from Swindon College had ultimately been the cause of his dismissal.

The Court will in due course have to decide on the amount of damages unless the case is settled or there is a successful appeal. Given that this is a novel case and there may be scope for argument about the extent of the duty of care it would not be a great surprise if an attempt is made to appeal.

The lesson for employers is to be very careful before making any comment to a third party about an existing or past employee. Swindon were not a referee for the Claimant and there was no obligation on them to say anything to the University at all. If they had not done so they would have had no legal liability if anything had gone wrong at the University.

Given that volunteering opinions as opposed to basic facts in a reference is dangerous enough in itself, when you are not even asked for a reference it may be that "silence is golden."

Always bear in mind that in the High Court damages are unlimited and can exceed the limits which would apply to an Unfair Dismissal claim in the Employment Tribunal.