Negligent references

A recent High Court case has highlighted that giving negligent references or statements about former or departing employees to their potential new employers can result in claims and awards of compensation. You should be careful when giving references or indeed making general statements about former employees.

It is well established in case law that an employee can claim against an employer when they have given a negligent reference about them. This case (McKie v Swindon College) extended the concept because it involved the employers sending a negligent statement via email to the employee’s new employers. This was not a reference as such but was considered by the court to be covered by the established case law position.

McKie had been a well-respected employee at Swindon College for some years and then left to join Bath University. A new HR Director at Swindon College sent an email to Bath University which contained some very strong allegations about McKie’s conduct whilst at Swindon. As a result of the email, Bath University dismissed McKie. He brought a successful claim against Swindon. The court said that Swindon did owe him a duty of care and that he did suffer damage as a result of the email. The evidence heard by the court indicated that the allegations within the email were unfounded and not supported by any evidence. McKie is likely to be awarded significant compensation for the loss of his employment and earnings.

The provision of references can be a bit of a minefield. There is no legal obligation to provide a reference but most employers do so. You should not cherry pick whether to provide a reference or not as this could result in discrimination claims. Additionally, it may be an express or implied term in the employment contract that a reference will be given, especially if it is established standard practice. Most importantly, a reference must be ‘fair and accurate’. There is a delicate balance to achieve here since you will owe a duty of care to the new employers and so giving a glowing reference to an employee who in fact performed poorly may open you up to claims from their new employer. However, making negative comments in the reference may also open you up to claims from the employee.

A practical way (but not entirely risk free way) to deal with this is to have a company policy (communicated to all employees) to provide only basic references and no more. The basic reference could include:

• details of the employee’s job title,
• the employee’s start and/or end date of employment with you,
• a statement that it is your company policy to only provide such a reference and no inference should be drawn from this; and
• that you are not liable for any loss arising out of the making of the reference or reliance by the new employer on it.

If you do decide to provide fuller references, remember that any statements must be true and accurate and not misleading in any way.

For advice and support on employment matters, please call Lawspeed on 01273 236 236.