Critically evaluate, in relation to the common law duty of care, the liability of employers for references. How, if at all, does the liability of a university (such as the University of Sussex) differ regarding references given to potential employers in
The Liability of Employers for ReferenceQuoting Eden (2011), Introduction to Business Law, the common law duty of care requires that a duty of care is owed to anyone who may be seen as likely to be affected by the defendant’s (a company, individual or institution sued or accused in a court of law) action.
The duty of care is owed to the claimant in the following circumstances: when the damage to the claimant is reasonably foreseeable. Secondly, when the relationship between the claimant and the defendant is sufficiently proximate and, three, when it is just and reasonable to impose a duty of care (Wesemann, 2011). This document examines the liability of the employers in the process of issuance of references in relation to this law. References are documents given to potential employers addressing the employee’s ability to determine their suitability for a given job description. Potential employers use it to offers or reject the employee’s request to obtain a job. Based on this purpose, references are professional documents that carry a lot of weight pertaining to the fact that they can make one get or loose a job and hence economic income. The common law of duty of care is applied in the intervention of conflicts which arise in the process of compiling this document.
According to Myers (2011), there are, however, various ramifications involved in the process of giving references, while considering the common law of duty of care. First, the reference is supposed to be accurate while at the same time the employer confines himself within the terms of contract between him/her and employee. If it is alluded in the terms that the trust and confidence must be maintained; and the employer disrespects this by way of disclosing information which depicts lack of trust by the employee then the employer must take full legal liability for having dishonored the terms and conditions of agreement. This on the other hand means the potential employer may suffer for considering the employee because of the hidden misconduct. As such the potential employee may consider seeking legal redress over the misinformation, holding the former employer liable for it. This is due to differences in terms and conditions of contract given by the two employers to the same employee. The major challenge in using this law to intervene in such a situation is that where the employee move from one employer to another with totally different terms and conditions of contract, the law becomes difficult to implement.
Eden (2011) asserts that in order to reduce but not absolutely escape the risk of liability for references, employers may refuse to give reference, limit reference to factual matters including dates of employment and job titles or include a disclaimer, i.e. that the reference is given on the basis that the employer accepts no liability which may arise from the reliance on the information therein. But there are guidelines to following considering the ways of reducing the risk of issuing references. The employer does not just decide to adopt one.
Absconding from giving reference may not be a choice for the employer since the terms of contract implies it under the considerations. Considerations in the employment situation are promises made by the employer o the employee. They include things that have economic value and do not cover what was given in the past (Jones, 2011). It is an obligation for employers because failure to do so may amount to an individual missing out on employment opportunity. This can be challengeable in the court of law by the employee. Therefore they are obliged to issue recommendation upon request.
A disclaimer is usually preferred by the employers. It somehow shields the employer from being victimized by the terms and conditions in his/her own company. It does not however absolutely protect him from legal suit. Disclaimer will be stated by the employer after having specified the employment details of the employee as is required. The reference does not have to be extolling or incriminating (Beatty & Samuelson, 2009). This would still agree with the terms of the contract which requires that the employer provides consideration which is only sufficient, have an economic value, but not necessarily adequate, comprehensive or extolling.
These proposals however, will still affect both the employee and the potential employer. For the employee, the suggestions casts doubt on his/her caliber which may make him/her less preference for job vacancy. Furthermore, references are kept away from them and as such they have no clue on what is in the reference envelop (Beatty & Samuelson, 2009). This affects their psychology even though they are assured that nothing stranger to him/her should be included.
For the potential employer, keeping the reference contents brief to the extent only regarding the job description and closing with disclaimer will demand a lot of evaluation before deciding whether or not to offer employment. Where the disclaimer is given by the former employer in the practice of honoring the terms of contract with his/her employee and also in trying to take only a reasonable responsibility which should not implicate him/her, the potential employer has no capacity to appeal to the former employer to confide in the current employer to provide him/her with evidence personal account of the employee since this will be tantamount to breach of terms of contract. In short no other information is provided out of the reference. The potential employer should consider the clues evident in the reference about the employee’s achievements and contributions. Seeking for detailed information on the conduct may not be realistic.
These views built on the common law of duty of care are largely similar to the same principles that the universities apply to the employees and potential employers. They two agree in many basic principles. Eden (2011) asserts that in both cases, the employer is fully liable to the employee and potential employer. Either of the two can sue the current employer in the event of false information. Two, in both cases the employer is obliged to issue reference on request as failure to do so can lead to the employee failing to get a job. Three, the employer is only allowed to comment on the reference, about the abilities of the employee that have been the subject of discussion and not anything unmentioned before. Four, the reference is to be confidential only to the effect that it bears no act of negligence or defamation which can make it subject to disclosure by court or tribunal.
Beatty, J. and Samuelson, S. (2009) Introduction to Business Law 3rd Ed., New York: Cengage Learning.
Eden, P. (2011) The law of Tort I, University of Sussex: University of Sussex Press.
Jones, L. (2011) Introduction to Business Law, Oxford University: Oxford University Press.
Myers, B. (2011) Introduction to business law, University of Sussex: University of Sussex Press.
Wesemann, A. (2011) Introduction to business law: Law of the European Union, University of Sussex: University of Sussex Press.