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References, a cautionary tale

You are a 55-year-old lecturer. You join the staff of a University that has a role overseeing degree courses at colleges of further education. One such college is S. You worked there for 5 years leaving 6 years ago with an excellent reference.

Three weeks into your job, HR at S emails HR at the University. He states that S would be unable to accept you on its premises or delivering to its students. The reason? S had "very real safeguarding concerns for our students and there were serious staff relationship problems" during your employment there.

Within 5 days, you have been summoned to a meeting and dismissed. It's an unfair dismissal but you've not worked long enough to go to the Employment Tribunal.

You start an action against S. Your lawyers plead the email was a reference and that S had a duty of care in the provision of information to the University. Alternatively, it was an implied term of the old employment contract between S and yourself that any inquiry would be answered on facts revealed by careful enquiry. S breached both the term and the duty: the facts revealed to the University were false, misleading, inaccurate and unfair.

At trial, the judge sees the facts your way. The email was based entirely on what S's manager was told. And what he was told did not justify the email: "the circumstances surrounding the sending of the email flouted elementary standards of fairness."

But what's the legal remedy? The judge holds the email was not a reference. He doesn't like breach of implied term. He goes back to Caparo Industries Plc v Dickman & Ors [1990] 2 AC 605 and the 3-stage test expounded therein. Damage from the sending of the email was foreseeable; S had made the 6-year expired employment relationship sufficiently proximate and it was fair, just and reasonable that the law should impose a duty on S. Liability decided for you!

And that, gentle reader, is what happened in McKie v Swindon College [2011] EWHC 469 (QB).

Paul Stewart / 1st Jun 2011


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