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Former employer is liable for critical email that led to sacking, rules High Court

Out-Law News | 09 May 2011 | 11:58 am | 7 min. read

A sacked lecturer has the right to take action against a former employer whose email about him led to his dismissal, the High Court has ruled. The former employer had a duty of care to act fairly but failed, the Court said.

Academic Robert McKie was sacked by the University of Bath after it received an email from the Swindon College, for which he had worked six years earlier, outlining McKie's alleged professional failings.

The University of Bath used that material as the basis of disciplinary action and McKie claimed that the Swindon College was liable for negligent misrepresentation in its email. The High Court agreed.

An employer can be found responsible for negligent misrepresentation of a person in those circumstances if the person can prove the employer owed them a duty of care under the three-stage 'Caparo' legal test, Mr Justice Denyer said.

The Caparo test states that someone must prove that harm was "reasonably foreseeable" as a result of communication of information, that a close relationship existed between the person and the communicator and that it is fair, just and reasonable for that communicator to be imposed with a duty of care.

McKie was director of studies in the division of life long learning at the University of Bath. The email from Swindon had barred him from visiting its campus and criticised his conduct.

The email was sent by Robert Rowe, Director of Human Resources (HR) at Swindon College and was unfair, the judge said.

"The procedure adopted at  Swindon College  giving rise to the sending of the email, can be described as slapdash, sloppy, failing to comply with any sort of minimum standards of fairness, certainly any such standards as would be recognised by any judicial body taking decisions and disseminating information about another individual," he said.

The fact that Swindon accepted that Rowe's email might result in McKie losing his job at Bath proved that damages were foreseeable, the judge said.

"I am satisfied damage was foreseeable, the relationship was sufficiently proximate, it is fair, just and reasonable and there is a causal connection between the negligence in and about the sending of the email and the damage whereof the [McKie] complains. I therefore find for [McKie] on the question of liability," Mr Justice Denyer said in his ruling.

Swindon's reliance on evidence relating to the time of McKie's employment with it counted against it as it proved the closeness of the relationship that had existed between Swindon and McKie, the judge said.

"The mere fact that a number of years had gone by is not sufficient, of itself, [for Swindon] to say that the relationship between themselves and their ex-employee was no longer sufficiently proximate to give rise to any sort of duty of care," Mr Justice Denyer said.

The judge said that the particulars of McKie's case meant it was fair, just and reasonable to impose a duty of care on Swindon.

"If they do not owe him a duty of care, either because it is not foreseeable or that this relationship is not proximate, a man who, in my judgment, has been clearly and obviously wronged is to be left without a remedy," Mr Justice Denyer said.

"In my view, in the particular circumstances of this case, and in my view consistent with the authorities as they now stand, it is fair just and reasonable to impose a duty of care upon the defendants in the circumstances of this case," the judge said.

Swindon argued that Bath had dismissed McKie because of his failure to fulfil his duties. The judge said the entire contents of the email Rowe sent to Bath made it impossible for Bath to isolate the issue of Swindon's ban without considering the reasons for it.

"It is the totality of the email, not just the single line about banning him from the premises, which was the cause of the University of Bath sacking him," the judge ruled.

McKie's duties at Bath included liaising with and visiting colleges about his degree course. The head of human resources at Swindon emailed his counterpart at Bath to tell them that McKie would not be allowed to visit its premises.

“Further to our telephone conversation I can confirm to you that we would be unable to accept Rob McKie on our premises or delivering to our students. The reason for this is that we had very real safeguarding concerns for our students and there were serious staff relationship problems during his employment at this College. No formal action was taken against Mr McKie because he had left our employment before this was instigated. I understand that similar issues arose at the City of Bath College,” Robert Rowe, Director of Human Resources (HR) at Swindon College said.

McKie was dismissed shortly after attending a meeting with Bath officials to discuss the contents of the email.

Swindon had argued that Rowe's email was legitimate as it expressed concerns expressed to him by people who had worked with McKie in the past.

"Insofar as any justification and evidence justifying the sending of that email is concerned, I reject that evidence. It does not in any way, shape or form, convince me that the evidence of the claimant and his witnesses is wrong and provides no justification for the contents of the email," Mr Justice Denyer said in a High Court ruling.

Rowe said that two lecturers had told him not to let McKie conduct his duties at Swindon for "safeguarding reasons".

Swindon could only base the legitimacy of Rowe's email on the evidence provided by lecturer William Hunt, the judge said. Hunt was the only Swindon College witness to have worked with McKie when McKie was employed at Swindon, the judge said.

McKie had "behaviour and conduct issues" and did not like students, Hunt said. Students were too afraid to complain, he said.

Hunt accepted that there had been no complaints about McKie, that he had not directly worked with McKie and that his line manager was Caroline Bullock who had provided evidence in support of McKie's professionalism, Mr Justice Denyer said. Hunt's allegation that McKie moved mail around different pigeon holes was "ludicrous", the judge said.

Hunt's evidence did not provide a legitimate reason for Rowe to send his critical email, the judge said.

"Insofar as Hunt asserts that there was difficulties with colleagues and that students found him difficult, afraid to make formal complaints, I completely reject it. I likewise reject the allegation that in some way the claimant did not like students. I have no doubt he expected high standards of his students. I am sufficiently old-fashioned not to find that to be a matter to be criticised but rather to be lauded. In summary, the evidence of Mr Hunt in no ways justifies the contents of the email that was sent," the Mr Justice Denyer said.

Mr Justice Denyer rejected Swindon's argument that said Hunt's opinion was supported by McKie's former colleague at Bath College after he had moved from Swindon. Caroline Fidmont was not in a position to provide evidence on McKie's work conduct at Swindon, the judge said.

Mr Justice Denyer dismissed evidence from a chartered psychologist who said he had lost a report he had formed of McKie during McKie's time at Swindon. The report called for an investigation into McKie's teaching methods and behaviour towards students, Dr Lombard had said.

"I find the idea that there was any sort of formal report, critical of the claimant circulating or submitted at a time prior to [McKie] leaving Swindon College to be completely and utterly unproven," the judge said.

Mr Justice Denyer criticised Bath's disciplinary procedures and said that it was not clear that the meeting McKie was asked to attend was a disciplinary meeting that could lead to McKie's dismissal, the judge said.
At the meeting Robert Eales informed McKie that they were considering McKie's inability to fulfil his duties as a result of his ban from Swindon, the judge said.

Correspondence from the university following the meeting proved that McKie's inability to fulfil his duties was not the only consideration the university were giving to McKie's position, the judge said.

"FB [Faith Butt] stated that as a Board Member of Swindon College she would not expect the College to make such serious statements .... the College must be very serious about this matter for it to be put into writing," the university said in its correspondence to McKie.

"This ... rather gives the lie to the assertion that it was the simple basic fact of his being banned from Swindon that was the sole motivator behind the dismissal," Mr Justice Denyer said.

The judge noted that McKie was not given extra time to gather evidence to support his case and said it was "staggering" that Butt was part of the disciplinary process at the meeting and was also on the governing body of Swindon College.

"It contradicts almost every rule, as it seems to me, about decision making in a quasi-judicial matter. There is a conflict of interest," the judge said.

Mr Justice Denyer called Bath's decision to sack McKie "not fair" but said Bath was entitled to dismiss McKie paying only one month's notice as McKie was still in his probationary period at the time he was sacked.

"Bath University, in a sense were in a relatively strong position. [McKie] had only just started working for them. He was in his probationary period. At common law, therefore, if they sacked him, provided only they paid the one month notice, they were in the clear and, because he had only worked for a few weeks, any protection under the unfair dismissal legislation would not be available to him," Mr Justice Denyer said.

"In a nutshell, they could act unfairly with impunity. I should add that it is my view, as I expressed I think quite clearly during the course of the evidence, that I regard the response of the University as supremely supine in the face of that email and one would have thought, at the very least, they would have inquired further and considered [McKie's] response further, rather than acting as they did," Mr Justice Denyer said.

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