High Court rules former employer liable for critical email that led to dismissal

The High Court has ruled that a sacked lecturer can take legal action against his former employers after they sent a critical email to his new employers that led to him being dismissed.

Robert McKie was sacked by the University of Bath after they received an email from Swindon College, his former employer, criticising his behaviour and saying that other staff and students had problems with him.

Robert Rowe, the director of human resources at Swindon College, sent the email to the University of Bath in connection with McKie’s duties to liaise with schools and colleges about the degree course he taught at the university. Rowe informed the university that he could not allow McKie back onto the premises.

Shortly after the email was received, the University of Bath conducted a disciplinary meeting with McKie, after which he was dismissed.

McKie argued that his former employer owed him a duty of care and was liable for negligent misrepresentation.

An employer can be guilty of negligent misrepresentation if it can be established that they owe an employee a duty of care under the ‘Caparo’ test.

The Caparo test requires the employee to prove that it was ‘reasonably foreseeable’ that harm would be caused as a result of the employer passing on the information. In addition, a close relationship must have existed between the employer and the employee. The court must also find it fair, just and reasonable to impose a duty of care on the employer.

The High Court judge, Mr Justice Denyer, found that a duty of care had been owed to McKie by Swindon College and that he can take legal action against them for negligent misrepresentation.

Swindon College tried to argue that the period of six years since McKie’s employment there meant the close relationship required by the Caparo test did not exist. However, the judge said that this argument was “not sufficient” to disprove the necessary proximity of the relationship.

He called Swindon College’s procedure before writing the email “slapdash" and "sleepy”, and said the college had failed “to comply with any sort of minimum standards of fairness”.

The judge also criticised the University of Bath’s disciplinary procedure. They did not make it clear to McKie that the meeting could lead to his dismissal.

However, because the university sacked McKie within his probation period and paid him his notice, he cannot sue them for unfair dismissal.

Employers are advised to take note of the High Court ruling as it means emails sent about former employees could open them up to legal action if the employee can prove negligent misrepresentation.

Job Justice can put employers in touch with specialist employment solicitors who can advise on this area of employment law.