McKie v Swindon College

An ex-employee may be owed a duty of care by a former employer which provides damaging information about him to a third party, even where the communication is not a conventional employment reference. The duty may arise where economic loss is foreseeable, the former employer has created a sufficiently proximate relationship by relying on and communicating historic employment information, and it is fair, just and reasonable to impose liability. The court must assess the communication as a whole when considering causation. A prohibition on attending premises does not sever causation where the accompanying allegations materially contributed to the recipient’s decision to dismiss the employee.

The claimant had formerly worked for the defendant college. After he took employment at the University of Bath, the defendant sent the University an email stating that it would not permit him to attend its premises or teach its students, asserting safeguarding concerns and serious staff relationship problems.

The University dismissed the claimant during his probationary period. He claimed that the email was negligently prepared and caused his economic loss. The central issues were whether the defendant owed him a duty of care, whether the email was a reference, and whether the email caused his dismissal.

1. Liability. Judgment was given for the claimant on liability. The email was unsupported by reliable evidence. Its preparation involved inadequate enquiry and failed to meet elementary standards of fairness and diligence.
2. Nature of the communication. The email was not a reference within the principle recognised in Spring v Guardian Assurance [1995] 2 AC 296. A reference ordinarily concerns information supplied in response to a request connected with a prospective appointment or other transaction. The University had already offered the claimant employment and did not rely on the defendant in making that offer. The case was also materially different from White v Jones, where there was a contractual background and an intended beneficiary of the solicitors’ retainer.
3. Duty of care. The court applied the approach in Caparo Industries Plc v Dickman [1990] 2 AC 605. The claimant suffered economic loss. That loss was plainly foreseeable because the defendant knew that the email could affect his employment. Sufficient proximity existed despite the lapse of several years, because the defendant chose to rely on information about the claimant’s former employment and communicate it to a third party. It was fair, just and reasonable to impose a duty in the circumstances.
4. The absence of a continuing contractual duty did not prevent a duty arising in negligence. Nor did the absence of a conventional reference prevent liability where the ordinary requirements of foreseeability, proximity and fairness were met.
5. Causation. The University did not act only on the statement that the claimant was barred from the premises. The safeguarding allegations and other reasons in the email formed part of the causal communication. The totality of the email caused the dismissal.