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Be careful what you say in references - 13-01-2012
A case in the High Court has highlighted the problems providing a negligent reference about a former employee can create for an employer.

In the McKie v Swindon College case the employee brought a case against a former employer, Swindon College because an email was sent from the College to his then employer, six years after he had stopped working for Swindon College.

The email suggested (wrongly) that there had been serious concerns about his behaviour as an employee. The employee was dismissed as a result of the email. Whilst he had been employed by Swindon College, he had been promoted and had received bonus awards. When he had left, he had received a glowing reference.”

Tim Lang, Partner and Head of Employment Law at George Green LLP commented

“In this case the High Court has handed down judgment which could have serious implications for employers. Mr Lang continued

“The court found that Swindon College had been negligent towards the employee. It had owed the employee a duty of care because it was foreseeable that the employee could lose his job as a result of the damaging email, that there was sufficient closeness between the College and the employee, that it was fair just and reasonable to impose a duty of care and that there was a link between the sending of the email and the damage that the employee suffered.

The court was dealing with liability (i.e. whether Swindon College had to pay compensation), and will assess the amount of compensation on a future date if the parties cannot agree a figure.”

According to Mr Lang

“This case reminds employers of the need for care when communicating about current or former employees, whether they are writing formal references or not. Whilst this will not work for all companies, we strongly advise that employers make it a disciplinary offence to provide references or make statements about ex-employees without first running the reference past HR.”

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