Negligent Misstatement: Employee References.
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Spring v Guardian Assurance plc and others [1994] IRLR 460 HL
The case of Spring v Guardian Assurance plc and others [1994] IRLR 460 HL, involved a Claimant who was employed by an insurance firm. His employer whose company he was planning to leave found out he was to join a rival firm and he was dismissed.
The main issue in the case was that of negligent misstatement. His new employer asked for a reference and his former employer gave an unfavourable one which as a consequence he wasn’t able to get a job for several years, but was also struck off the insurance industry register.
The House of Lords found that the employer had been negligent in providing the reference to future employers which relied upon allegations such as detailed above which had not been properly investigated. The court said it would expect an employer in order to discharge their duty to provide an accurate and fair reference, to make reasonable enquiries as to the factual basis of the statements. They referred to the case of British Home Stores Limited v Burchell [1980] I.C.R. 303. (E.A.T.). This case stated that an employer should be confined as to statements as to those matters to which they had investigated and had reasonable grounds for believing they were true.
McKie v Swindon College [2011] EWHC 469 (QB).
The most recent case of negligent misstatement is that of McKie v Swindon College [2011] EWHC 469 (QB).
This was a case which did not involve a formal reference. McKie had left his employment in 2002 at Swindon College. He had followed on from that and had worked at various academic institutions. In May 2008 he took a job as a Director of Studies and Lifelong Learning at Bath University.
After he had started work Swindon College sent an email to Bath University which said that Swindon would not accept Mr. McKie on to their premises due to issues which had arisen during his employment.
No claim was brought in defamation because of the defence of qualified privilege but a claim was brought in negligence.
Mr. McKie alleged that no investigation had been carried out before the email had been sent and that the lack of investigation and falseness of the email constituted breach of their duty to him.
Swindon argued that the email was not a reference and as such Spring v Guardian Insurance Plc did not apply. Swindon College had not been asked to provide the information. The judge however found that the employer still owed a duty of care. It was clearly foreseeable that the email would have an impact on his new employment. The judge thought that it was “Blindingly obvious”.
Another difficult question was the six year gap. The judge found that the fact that Swindon College had offered this view meant that there was sufficient proximity.
The court found that the breach of duty has caused Mr. McKie to lose his job and as such was entitled to compensation from Swindon College.
Jackson v Liverpool City Council 2011.
The most recent case of negligent misstatement is that of Jackson v Liverpool City Council 2011.
The difference in this case was that the Court of Appeal accepted the reference was truthful however unfortunate for the Claimant and the employer would have failed in its duty to the employer if they had not responded.
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