Most employers know that there is no general legal requirement to give a reference for an ex-employee. Most also know that if they do give one, they may face problems if it is misleading or wrong and the ex-employee cannot get another job as a result. The High Court has recently taken this further. It has held that an ex-employer was liable to a former employee for damaging information about the former employee which was not in a reference at all. You can read the full judgment here.
Mr McKie was given a good reference when he left Swindon College. This helped him get a new job at Bath City College.
Shortly afterwards the HR Manager at Swindon College sent an email to his equivalent at Bath stating that Swindon College would not have Mr McKie on the premises due to safeguarding concerns for the students and serious staff relationship problems which occurred whilst he was employed there. The email stated that no formal action was taken due to his timely departure. Bath City College dismissed Mr McKie and he sued Swindon College.
He won. All evidence pointed to Mr McKie being an exemplary professional. The contents of the email were fallacious and untrue. Nothing justified sending it and the procedures at the college giving rise to it being sent were slapdash, sloppy, and failed to comply with any sort of minimum standards of fairness. The email would obviously impact upon his employment, yet there was no formal discussion, meeting, examination of personnel record, or recording of processes leading to the decision to send it.
The High Court found that Swindon College owed a duty of care to Mr McKie, and that it was "guilty" of having breached that duty. The fact that the breach was not in a formal reference did not let Swindon College off the hook.
The moral for employers is obvious. Make sure your staff do not make disparaging remarks about ex-employees, at least unless those comments are true and can be shown to be true.