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England and Wales High Court (Queen's Bench Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> McKie v Swindon College  EWHC 469 (QB) (11 February 2011)
Cite as:  IRLR 575,  EWHC 469 (QB)
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QUEEN'S BENCH DIVISION
BRISTOL DISTRICT REGISTRY
B e f o r e :
| MR ROBERT McKIE
165 Fleet Street, 8th Floor, London, EC4A 2DY
Tel No: 020 7422 6131 Fax No: 020 7422 6134
Web: www.merrillcorp.com/mls Email: email@example.com
MR J DAVIES (instructed by Messrs Beachcroft LLP) appeared on behalf of the Defendant
Crown Copyright ©
JUDGE DENYER QC:
"Rob has continued to show strong leadership skills in his management of the curriculum area. He has also planned the curriculum well, built an effective team and employed resources efficiently. This area had been performing poorly in terms of meeting Key Performance Indicators, Rob has skilfully brought the area a lot closer to those indicators to such an extent that it is now one of the best performing areas. The staff have a high degree of respect for him. This is particularly noteworthy because, his background is not business, leisure and tourism and when he took .... over morale was quite low."
The next paragraph may be of some significance as well:
"[He] has a positive personality. He is not afraid to challenge but in a constructive way. As a senior manager I value this side of [his] character highly. We need challenging constructive managers to get the feedback and ideas we need to move forward as a college. Just as importantly, if Rob has questioned a decision or a direction in which we are moving and the final decision is not what he would agree with, he will take it forward positively with his staff. [He] can be trusted to manage independently but is not afraid to come and ask when he may need further guidance."
The reference concludes:
"It is, therefore, with regret that I highly recommend Rob to you. I am very sorry we are losing him but really pleased he has the opportunity to work with Art and Design curriculum."
"8. In the time I knew the Claimant, he was highly respected by me and my colleagues on the Senior Management Team. He had done much to improve the quality of the business area and was highly influential in that area being successful in the Higher Education Quality review and won respect from peers and line reports for his work. He [w]as only involved in tutoring students in my area for a short time. .... I heard no negative feedback.
10. It was a pleasure to manage the Claimant. He is a highly intelligent man with an analytic mind. He could present and debate points extremely well. He also completed the work required of him and consistently met deadlines. He was a good planner and set and met high standards in terms of quality. He was always highly professional in the manner in which he carried out his work, he was also very supportive to me as Manager but never afraid to present new ideas .... He also enjoyed a very good professional relationship with those he managed and the rest of my Faculty Management Team...."
That, as I say, is Christine Bullock, his head of faculty.
"The Claimant was a very important member of staff and played a key role in the implementation of a new strategy at the College. I would have been aware if there were any concerns or issues regarding his performance or behaviour. I can categorically state that there were no such concerns. [He] proved to be a very effective manager at a college experiencing a range of difficulties. I regarded the Claimant as a model professional and there were never any occasions when he lapsed from these high standards. There were no instances when the Executive had any concerns of his behaviour with staff and students at the College."
"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. understand that similar issues arose at the City of Bath College."
That, as I say, emanates and signed by Robert Rowe, Director of Human Resources, Swindon College.
"The University has received the enclosed email from Swindon College in which they assert they do not want you on the premises or delivering to their students.
This is a serious impediment to your capacity to undertake your duties I would like to discuss this with you at the earliest opportunity. I would therefore be grateful if you would meet me and the Acting Director of Human Resources on Tuesday, 10th....
You are welcome to bring a colleague or union representative with you."
"FB [Faith Butt] stated that the problem the University faced was that 50% of the programmes were linked to Swindon College and 30% .... required a direct link with Swindon."
"MC [Michael Carley, the claimant's union rep] stated he was surprised Swindon College had not substantiated their allegation and that they were negligent in not dealing with the safeguarding issue referred to in the email.
RM [Mr McKie] asked if [Butt] and [Eales] wanted to know about the nature of the issue..."
Mr Eales, no doubt cognisant of basic employment law, said the issue they were considering was Mr McKie's inability to fulfil the duties of his post because Swindon College were refusing to allow him on the their site. But then this, which 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:
"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 plaintiff, who was an appointed company representative of the first defendants for the purpose of selling their investment products, was dismissed from the position of sales director (designate) and office manager by the second and third defendants who had been taken over by the first defendants, a subsidiary company of the fourth defendants. The plaintiff then sought to sell the products of another company. Under the rules of the regulatory body Lautro, that company was required to seek, and the first defendants to supply, a reference for the plaintiff. In consequence of the unfavourable reference supplied the company refused to appoint the plaintiff as a company representative. In an action by the plaintiff for damages, the judge held that the defendants had been under a duty of care to the plaintiff, that the reference given had constituted a negligent misstatement and that the defendants were accordingly liable to the plaintiff in negligence, but he dismissed the plaintiff's claims based on malicious falsehood and breach of contract. The Court of Appeal allowed an appeal by the defendants and dismissed a cross-appeal by the plaintiff.
Held, allowing the appeal (Lord Keith of Kinkel dissenting), (1) (per Lord Lowry, Lord Slynn of Hadley and Lord Woolf) that an employer who gave a reference in respect of a former employee owed that employee a duty to take reasonable care in its preparation and would be liable to him in negligence if he failed to do so and the employee thereby suffered economic damage; that the imposition of such a liability was not contrary to public policy on the ground that it might inhibit the giving of full and frank references; that the fact that in an action for defamation or injurious falsehood based on an inaccurate reference the employer would have a defence of qualified privilege did not bar an action by the employee in negligence where no such defence was available...."
Turning the page, according to Lord Goff, Lord Slynn and Lord Woolf:
"It was also an implied term of the contract between the plaintiff and the second and third defendants that they would ensure that reasonable care was taken in the compiling and giving of the reference, and they were in breach of that implied term...."
"But since the Anns case a series of decisions of the Privy Council and of your Lordships' House ....have emphasised the inability of any single general principle to provide a practical test which can be applied to every situation to determine whether a duty of care is owed and, if so, what is its scope .... What emerges is that, in addition to the foreseeability of damage, necessary ingredients in any situation giving rise to a duty of care are that there should exist between the party owing the duty and the party to whom it is owed a relationship characterised by the law as one of "proximity" or "neighbourhood" and that the situation should be one in which the court considers it fair, just and reasonable that the law should impose a duty of a given scope upon the one party for the benefit of the other. But it is implicit in the passages referred to that the concepts of proximity and fairness embodied in these additional ingredients are not susceptible of any such precise definition as would be necessary to give them utility as practical tests, but amount in effect to little more than convenient labels .... Whilst recognising, of course, the importance of the underlying general principles common to the whole field of negligence, I think the law has now moved in the direction of attaching greater significance to the more traditional categorisation of distinct and recognisable situations as guides to the existence, the scope and the limits of the varied duties of care which the law imposes. We must now, I think, recognise the wisdom of the words of Brennan J. in the High Court of Australia in Sutherland Shire Council v. Heyman (1985) 60 ALR 1, 43-44, where he said:
'It is preferable, in my view, that the law should develop novel categories of negligence incrementally and by analogy with established categories....'"