Bad mouthing former employees

McKie v Swindon College

Mr McKie worked for Swindon College. He left with a good reference from the college. Six years and two jobs later he took up a position with Bristol City College. At that point for some reason the HR manager at Swindon College, who had never met Mr Mckie sent en email to Bristol City College speaking very badly of Mr McKie who was then peremptorily dismissed.

When considering what remedy Mr McKie might have, the High Court ruled out the possibility of pursuing a defamation claim since Mr McKie would have to show express malice, which he could not prove. The same problem arose with the claim of malicious falsehood where malice needed to be shown.

The High Court stated quite clearly that the law relating to the giving of references was not relevant since this was not a reference. In this case, the court applied the rule in Hedley Byrne v Heller giving rise to the claim of negligent misstatement. Applying the guidelines in the case of Caparo Industries plc v Dickman, the court considered the three stage test:

What damage did Mr McKie suffer? He lost his job which gave rise to significant loss of earnings.
Proximity or neighbourhood. Whilst six years had elapsed since Mr McKie was employed by Swindon College, Swindon College itself brought about the relevant degree of proximity by its actions. The mere fact a number of years had gone by was not sufficient to break proximity.
Was it fair, just and reasonable to impose a duty of care? In the circumstances, it was.

This case is interesting because it emphasises a duty of care to be honest and fair when making statements about former members of staff even when this is not in the context of the giving of a reference and even when a substantial period of time has elapsed after the employment relationship has ended. Ex employers need to be careful about making damaging statements about former staff even outside the context of reference giving.

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