Employers, be careful what you say about former workers

Most employers are alive to their duty not to provide a misleading reference; if a misleading reference is provided to a prospective employer then there may be a liability in damages.

A recent High Court decision has now extended this duty beyond the situation in which a former employer supplies a negligent reference. Now, any information passed on about a former employee could mean that the employee is entitled to substantial compensation.

In the High Court case, M (a teacher) left Swindon College with an excellent reference in 2002 to take up a post elsewhere. In 2008, M accepted the position of director of the lifelong learning department at the University of Bath, which was responsible for overseeing courses at colleges, including Swindon College. However, shortly after M’s appointment, the new director of human resources at Swindon College sent an email to the university stating that the college would not allow M on to its premises because it had concerns in relation to its students and there had been serious staff relationship problems during M’s time there. The email also added that M had left the college before any formal action could be taken. In response to this email, M was dismissed by the university.

The Judge found that M was a highly respected member of staff during his time at Swindon College and that the contents of the email sent to the university were untrue. However, as the email was not a reference there was no liability to M on that basis and so the Judge considered whether the college owed any duty to M in relation to the information contained in the email. In upholding M’s claim for damages, the Judge found that: M had suffered damage by losing his job with the university; the damage was foreseeable; there was a causal connection between the email and the damage suffered; and the relationship between M and the college was sufficiently close to give rise to a duty of care, even though six years had passed since M had been employed there.

Perhaps this case is another example of how easy it is for email correspondence to slip through the net – would a letter from the human resources manager have found its way to the university? This case should not only serve as a reminder to employers to have procedures in place to monitor email communications but also to ensure that staff do not ‘badmouth’ former colleagues.

This article was written by Lara Murray, a solicitor in our Employment Department.