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    Negligent misstatements – duty of care beyond the reference situation

    Following the House of Lords decision in Spring v Guardian Assurance [1994] ICR 596 there already exists a duty of care between an employer and an employee or ex-employee when it comes to providing a reference for future employment.

    But does such a duty of care extend beyond the reference situation?

    The High Court has recently considered the position in McKie v Swindon College [2011] EWHC 469 (QB), 11 February 2011.

    Facts of the case

    Mr McKie worked for Swindon College from 1995 to 2002.  When he left to work for Bath City College, Swindon College gave him an excellent reference. He eventually moved to the University of Bath in May 2008, where he became director of studies.

    The University of Bath oversees degree courses at further education colleges, including Swindon College. Mr McKie’s new job involved his liaising with and visiting those colleges.

    On 5 June 2008, Robert Rowe, HR director at Swindon College, sent an e-mail to the University of Bath, stating:

    “We would be unable to accept Rob McKie on our premises or delivering to our students… we had very real safeguarding concerns for our students and there were serious staff relationship problems during his employment at this college. No formal action was taken against Mr McKie because he had left our employment before this was instigated. I understand that similar issues arose at the City of Bath College.”

    As a result of this e-mail, the University of Bath dismissed Mr McKie. Mr McKie sued Swindon College in the tort of negligent misstatement.

    Decision of the High Court

    On evidence, the High Court found that the statements in the email were fallacious.

    The matter then turned to whether a duty of care existed between Swindon College (the ex-employer) and Mr McKie.

    Judge Denyer QC applied the three-part test set out in Caparo Industries plc v Dickman and others [1990] 2 AC 605 in order to establish whether a duty of care could be imposed on Swindon College:

    Forseeability – Swindon College accepted that the email in question may have an adverse effect of Mr McKie’s employment. The fact that Mr McKie lost his job following the email was therefore foreseeable.

    Proximity – It was true that a period of 6 years had passed between Mr McKie’s employment by Swindon College and the email in question. However, they purported to rely on historic evidence as to their dealings with Mr McKie and chose to communicate that information to his employer. They therefore brought about the relevant degree of proximity as a result of their own actions.

    Fair, just and reasonable – Given the circumstances of the case, it was fair, just and reasonable to impose a duty of care.

    The High Court therefore found that, in sending the email to Mr McKie’s employer, Swindon College owed Mr McKie a duty of care.

    Potential application of the decision

    By analogy, it is envisaged that this decision could be applied in future so that a duty of care could be found to exist in the following scenarios (amongst others) within the educational field:

    • any educational institution (i.e. school, college) or educational body (i.e. local education authority, board of governors) making statements about ex-employees to their current employer;
    • school teachers making statements about ex-pupils to current employers or teaching institutions;
    • higher or further education tutors making statements about ex-students to current employers.

    Nisha Kumar, Humphreys & Co. 11.05.2011