Latest Legal News - Be careful what you say about ex-employees (July 2011)

Summary

It is generally well known by employers that they must take care when giving a reference for an ex-employee and that references should be "true, fair and accurate."

The recent case of McKie - v- Swindon College, now makes it clear that in certain circumstances, employers can face claims arising out of comments about ex-employees made long after a former employee has left their employment.

In the McKie case, the former employers, Swindon College, sent an email to his new employers with comments about Mr McKie.  The email was sent 6 years after Mr McKie had left the College's employment.  Mr McKie was then sacked by his new employers as a result of the email. The comments in the email were fallacious and untrue and the procedure under which the email was sent was slapdash.

The former employers were found  liable for negligent misstatement because they should have realised that their email would have an impact on McKie's employment with the College  and as such they should have taken care in drafting the email to ensure its accuracy and fairness.

Practical Implications

It is established that employers should have a procedure to deal with requests for references. Generally this policy would include details of who can provide a reference and when and what information can be included in the reference. Employers may choose to provide basic information only e.g dates of employment, job title etc. Where they choose to give further information , it must be " true, fair and accurate"  and they must take care to check the facts against written HR records and ensure that the information given is not misleading.

Now there's a new risk in relation to statements or comments made about ex-employees which are made outside any reference and which reflect on the employee's work performance or conduct.

The advice to employers is that there should be a clear workplace policy in place that questions about ex-employees should be treated carefully and referred to more senior employees.  All staff should be aware of the risk involved in making comments about ex-employees, whether verbally or in writing, and if in doubt, comments should not go further than what has already been written in any formal reference. It is easy for employers to make careless remarks particularly in informal telephone conversations.

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