Workplace rights: Badmouthing former staff

What risks do organisations face when making negative comments about ex-employees? Employers have a duty to take reasonable care when providing a reference for a former member of staff.

by Michael Burd and James Davies
Last Updated: 09 Oct 2013

Individuals can sue for 'negligent misstatement' if a carelessly inaccurate reference harms their job prospects. Employers can also be liable for victimisation under discrimination law if they provide a bad reference. But a recent judgment has extended employers' legal exposure beyond the giving of references. The High Court ruled that Swindon College could be liable to a former lecturer for damaging comments in an email to his new employer, even though it was sent six years after his employment with Swindon had ended. The college's mistake was to make comments that were obviously damaging (eg 'real safeguarding concerns for our students') without ensuring they were accurate or reasonable. In light of this, employers should proceed cautiously and follow a meticulous process before making potentially harmful critical comments about previous staff in any form and at any time.

- Michael Burd and James Davies, Lewis Silkin LLP solicitors, email:

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