Table of Contents
In law, duty of care is found under the tort of negligence (TON). A tort is a civil action that can only be compensated through payment for the damages. The law of torts has three main fundamentals which include duty of care, breach, and loss due to breach (Peebles, 2011 p. 1397). The acts or omissions of a person are likely to harm or cause damage to their neighbors. Such acts include negligence, trespass, among others that lack duty of care. Under the tort laws, employees have a legal obligation to protect their employees (former and current) from any form of harm. They must consider all the reasonable steps and measures to ensure their employees well-being, safety and health is provided (Peebles, 2011 p. 1399). According to the law, employers are required to adhere to appropriate safety, health and employment law, as well as the common law of duty. The study seeks to address the application of the common duty of care to the references given by employees to their former and current employees. The study also discusses how the university liability varies in regard to the references issues to former and current students. The relationship between the common law and the issues of references will also be established
Employers have a certain level of liability regarding statements of reference for former employees. Employers and employees have a role to care and provide authentic/true description of former employees’ potentials and qualities. A reasonable employee reference is grounded on truthfulness and fairness. Therefore, it is upon employers to avoid giving inaccurate references or information about former employees. As a matter of fact, it is the employers and not their employees who need to be held responsible for the conduct and well-being of employees. For instance, an employer would be held responsible for any injury if an employee gets injured while working for him. The status quo is maintained regardless of the employers’ intention to cause no harm. In duty to care employers are liable to guiding the employees’ behavior. They must be in a position to share the good and bad results with the employees. In the case of Spring v Guardian Assurance plc of 1995, the House of Lords decided that the employers who provide references of employees, either former or current, have a responsibility of duty of care and are liable to any economic loss, and physical damage as a result of misstatement or negligence.
In a recent case of Kidd v Axa Equity and Law Assurance Society plc of 2000, the judge noted that while a reference provided must be true, the employer has no further obligations to make the reference full and comprehensive (Peebles, 2011 p. 1400). Courts have a tendency to use the principle of negligent misstatements which falsely describe employees as the ones in breach of duty of care. In references, misstatements are accounts that present false images of employees through either overlook or information that are likely to cause economic loss for other employees. In the case of Bartholomew v London Borough of Hackney, 1999, the judges held that employers do not need to give comprehensive and full information of employee in the reference as long as the information is accurate (Peebles, 2011 p. 1402). The court also expounded on the principle that employers have to provide reference to their employees. Even if the information provided is correct, it should not exist in such a way that it gives the reader an unfair impression of the employee.
Duty of care also applies to the current employees. In TSB Bank plc v Harris, 2000, the employer gave a final warning to Ms. Harris regarding her conduct and she began seeking for another job (Montague, 2013 p. 46). The bank issued a reference letter to a potential employer mentioning 19 complaints that has been lodged against her. In the end, she lost the job despite being unaware of such complaints. When Harris claimed that her dismissal was unfair, the court ruled in her favor. Under the common law duty of care, and employer liability for reference, the employer breaches the implied terms of confidence and trust in employee if they disclose confidential information about the employees even if the reference may be accurate (Montague, 2013 p. 47). It is a breach of confidence and trust when an employer discloses complaints regarding employees to other people if he or she had no opportunity to respond to the claims.
Information included in the reference must be thoroughly investigated and scrutinized. This will give the employer confidence in all the facts provided. Any ongoing cases must be settled and the outcome clearly communicated to the employee to exclude any doubt in the employee concerning his references. An example of an unfair reference can be drawn from the case of Cos v Sun Alliance Life Limited, 2001. The employer wrote unfavorable references that lead to termination of the employees’ jobs (Labour & Sun Alliance Life Limited, 2001). The court ruled that it is the employer’s responsibility to issue accurate and fair references.
Learning institutions are also required to consider duty of care when writing references for their current employees, former employees, and students. In the case of McKie v Swindon College, 2011, the plaintiff left his job at the college (the defendant entity) with a glowing reference. Afterwards, he was employed at the University of Bath, which demanded that McKie liaised with the former employer (Montague, 2013 p. 22). The school letter sent the letter to Bath indicating the previous conducts of McKie which cost him his current job loss at the University of Bath. When the plaintiff claimed damages, the court ruled against it stating that the email sent to the University of Bath did not serve as a reference and besides, it contained untrue and fallacious information (Montague, 2013 p.22). The action by the University was deemed just, fair and reasonable and the loss was verified. What was clear from the McKie case is that careless and informal talk regarding former employees can cost claim in damages. It is the mandate of the employers to carefully consider the correctness of comments made on former employees, and make sure that the claims or such communications adhere to the minimum standards of truth/fairness. As the case exemplifies, time passage alone will not hinder the relationship between the former employee and the employer from practicing duty of care.
The same principles of liability and duty of care in the Universities that applies to the employees also apply to students. Courts need to use the same guidance to judge and see the existing proximity and the professional capacity of colleges in relation to students relying on them for professional reference. This is likely to be deemed fair, reasonable, and just based on proximity. The House of Lords should also look at foreseeability, availability of misstatements, and any casual links to loss. Universities are not often tasked with issuing references to their students. However, when some professions/jobs mandate it to do so, people may raise claims of unfairness. A case example is that of Coote v Granada Hospitality limited of 1999, where former workers petitioned for claims of sex discrimination when their previous employers denied them a reference.
Today, due to fear of litigation following the precedence set in the courts, legal advisers instruct their clients to reduce the risks of liability of references as much as they can. Some employers even decline to issue references altogether. In other cases, they limit them to truthful matters including employment period, job titles, and dates (Middlemiss, 2004, p.2). Another suggestion for employers in writing references is to place a disclaimer on the reference. For instance, some use statements such as, “this reference is issued on the ground that the employer will not accept any liability which may arise from reliance on the information enclosed in it.” The employers must also be informed on the disclaimer as they may not be aware of it (Middlemiss, 2004, p.7). As seen in the case of McKie v Swindon College, liability is subject to reasonableness as per the unfair contract terms act 1977.
Common law on the duty of care is important to employers who are required to give references both to former and current employees. The same law applies to universities when dealing with employees’ and students’ references. Employers and institutions are liable for the information that they provide. If they fail to provide accurate information on their employees or students to the employers, they must be ready to bear the consequences. The conditions for the law of duty of care include loss foreseeability, proximity, reasonability, and fairness, therefore, any negligent misstatement in the references are linked to loss for either student or employee and the employer will be liable for damages.
- Labour & Sun Alliance Life Limited. 2001. Careless Words Cost Jobs.
- Middlemiss, S., 2004. The truth and nothing but the truth? The legal liability of employers for employee references. Industrial Law Journal, Volume 33, Number 1.
- Montague, J.E., 2013. Q&A Torts 2013-2014. Routledge.
- Peebles, K.A., 2011. Negligent hiring and the information age: How state legislatures can save employers from inevitable liability. Wm. & Mary L. Rev., 53, p.1397.