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McKie ­v­ Swindon College 2011

In this month’s E­News, we consider the High Court’s decision which has found an ex­employer liable to one of its former employees for careless comments made by the ex­employer’s employee to the current employer, which led to his dismissal; whether favouring an employee on maternity leave could give rise to a claim by the employee’s colleagues; and in what circumstances are marks scored during a redundancy process scrutinised by the Employment Tribunal.

Negligent mis­statement about a former employee

In the case of McKie ­v­ Swindon College 2011, the High Court considered whether an employer owed a former employee a duty of care in respect of a negative comment made by one of it’s employees.

Mr McKie worked for Swindon College from 1995 to 2002 when he left to work for Bath City College. Swindon College gave him an excellent reference. He moved to Bristol City College in 2007 and to the University of Bath in May 2008, where he became Director of Studies.

Mr McKie’s role involved liaising with and visiting colleges including his former employer, Swindon College. On 5 June 2008, Robert Rowe, Human Resources Director at Swindon College, sent an email to the University of Bath, stating:­

“We would be unable to accept Rob McKie on our premises or delivering to our students …we had very real safeguarding concerns for our students and there were serious staff relationship problems during his employment at the College. No formal action was taken against Mr McKie because he had left our employment before this was instigated. I understand that similar issues were raised at the City of Bath College”.

In light of this, the University of Bath dismissed Mr McKie. Mr McKie sued Swindon College.

It has long been established that an employer providing a reference owes the employee in question a duty to take reasonable care in the preparation of the reference. If the employer breaches that duty, the employee can seek to recover losses arising. The case of McKie concerned unfavourable comments about an individual made by his former employer to his current employer. The comments were not made in a reference but in an email sent six years after the employee had left.

The Court held that Swindon College owed Mr McKie a duty of care, that the College had breached that duty of care and, as a result, Mr McKie had suffered a loss.

This case suggests that a duty of care can also arise in respect of former employees in a non­reference situation. Employers should be very wary about their employees communicating in such a way which may give rise to an employee suffering a loss.

Redundancy and sex discrimination

In the case of Eversheds ­v­ De Belin, Mr De Belin brought a claim against Eversheds on the grounds that he was unfairly dismissed because a colleague who was on maternity leave received inflated scores during the redundancy scoring process which meant that he was made redundant.

Eversheds’ redundancy procedure adopted a points scoring system against a range of criterion. One of the criterion scored potential candidates in relation to how quickly they recovered outstanding fees/debts from their clients. A female colleague of Mr De Belin was automatically awarded the maximum 2 points for this criterion because Eversheds were not able to assess her, as she was on maternity leave for the prescribed period.

Mr De Belin was awarded only ½ point in relation to this criterion. This gave him a total of 27 points compared to his female colleague who received 27.5. This resulted in him being selected for redundancy and ultimately succeeding with a claim for sex discrimination.

This case illustrates that employers should assess the possible ways in which the disadvantage of a maternity absence can be mitigated, rather than automatically favouring the female employee above others.

Redundancy and Unfair Dismissal

In the case of Dobson –v­ David Cover and Sons, the Employment Appeal Tribunal had held that when assessing the fairness of selection for redundancy, the marks awarded in the selection exercise should only be investigated in exceptional circumstances, such as the absence of obvious mistake or absence of good faith.

In the News…..

Agency Workers’ Regulations 2010

The Department for Business Innovation and Skills has published its guidance on the Agency Workers’ Regulations 2010, which come into force on 1 October 2011.

In summary, the Regulations provide that agency workers will have the same rights to pay, benefits, rest periods and holidays as ordinary permanent workers, as long as the agency worker has been engaged for 12 consecutive weeks. The regulations need to be understood by all organisations who use agency workers. We will shortly be preparing a briefing and organising a workshop providing guidance in relation to the new Regulations.

News on Further Government Reforms

The Government announced new areas that it will consider reforming as part of its red tape, including collective redundancy periods, the Transfer of Undertakings (Protection of Employment) Regulations 2006 and compensation for discrimination awarded by Employment Tribunals.

The on­going review is an important part of the Government’s plan to deliver growth by breaking down barriers, boosting opportunities and creating the right conditions for businesses to start up and thrive.

Sejal Raja sejal.raja@rlb-­
© RadcliffesLeBrasseur
May 2011


This briefing is for guidance purposes only. RadcliffesLeBrasseur LLP accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.