Liabilities of Employers for References - Essay Example

Liabilities of employers for references Number Department Liabilities of employers for references The giving of references is a common practice in the labour industry. However, the English Law does not impose any duty on an employer to offer a reference for a former employee. The issue falls within the regulatory framework of select industries where formal agreements or contracts serve as references. The financial sector is one of such areas. Despite the lack of an obligation guiding the issue of references in the UK, an employer is bound by law to act in a consistent manner as far as offering references are concerned. Selective provision of reference for former employees could contravene the Equality Act 2010 (the Act) if such an exercise amounts to discrimination. In cases where an employer does not offer a reference, it is bound by a duty of care to the former employee. The duty requires the former employer to exercise reasonable care in the processing of accurate, truthful, clear, and fair references (Sam, 2004). Employers also have a duty to fellow employer. In executing this duty, Austen-Baker (2011) notes that a former employer may offer a detailed or a brief reference; however, the content must contain all the necessary information that leaves no room for speculation. Any employer who fails on this may be liable for negligent misrepresentation of facts (Gergen, 2013). Such an employer may also be vulnerable to tort of deceit charges. Detrimental treatment The Act provides important safeguards against victimisation of an individual who files a case against a former employer or has volunteered evidence in trial under the statute or filed a claim for violation of the statute (Elder, and Gerdes, 2007). Before the Act was enacted, the English common law had ensured that immunity against whistle-blowers and victims was in place. For instance, the House of Lords verdict in the case of Rhys-Harper v Relaxation Group plc [2003] IRLR 484, directed that employees should be cushioned against victimisation such as an employer’s denial of reference in connection to an earlier engagement. Marson (2013) has pointed out that Section 108 of the statute precisely leaves out issues to do with detrimental treatment where an employer-employee relationship has ended. Even though the motive behind Parliament’s decision to leave out victimisation claims after the end of an employment relationship could be seen as an error, the alleged gap is consistent with placing no duty on an employer to give reference to a former employee. Authorities Various examples of the UK case law have not been consistent on victimization of former employees. In the case of Ono v Akwiku (2012), the Employment Appeal Tribunal (EAT) issued a verdict to the effect that it is legal for ex-employees to file for a claim for detrimental treatment under the Equality Act 2010. The ruling may have been informed by the fact that some employees are victims of unfair dismissal and subsequent victimization. Regardless of the reasoning, the EAT verdict contradicts the outcomes of the case of Rowstock Ltd & another v Jessemey (2013). In the latter case, the EAT held that Mr Rowstock could not be remedied for victimisation, following his receipt of a bad reference from his ex-employer. The claimant had alleged age discrimination as victimisation (Marson, 2013). The EAT's ruling was informed by the literal rule of §108 of the Act, which could not be construed to arrive at a different meaning (Gergen, 2013). In the case of Ono v Atwiku, the petitioner, a domestic employee filed for a claim against her ex-employers citing detrimental treatment which happened after the engagement between the two parties had ended. In its decision, as Marson (2013) states, the EAT sought to correct the ruling in Jessemey, by arguing that it would not be proper to bring claims of victimization against the former employer after they had gone separate ways. Legal absurdity In spite of the correction of the ruling on the former case in the latter one, the entry of Jessemey case in the UK case law does create an absurdity as far as the continental European law on post-employment detrimental treatment is concerned (Austen-Baker, 2011). Whereas the EU law outlaws post-employment victimisation, the domestic law (the Act) only allows for the filing of such claims by employees against their current employers (Marson, 2013). This confusion will need an amendment to correct. Nonetheless, employers are required to develop clear in-house rules that guide the issuing of references to avoid chances of violating the Act. Liabilities of a university regarding references Marson (2013) argues that unlike in other business organizations, employment references create a serious dilemma for learning institutions such as universities. As a tradition within an organization, a university normally has its own in-house faculties and administrators who are willing to give references. Whereas a number of them want to give positive references for their employees based on meritocracy, or individuals who they would be happy seeing in rewarding employment elsewhere, others may be economical with such tribute (Shearer and Icenogle, 2012). The latter group may want to scrutinize every factual or alleged defect in the performance of an employee and express the outcome in the references (Hoult, 1998). Whichever the case, any kind of references can make a university liable for risks that other employers in the market may rarely face (Bosch, Rubery, and Lehndorff, 2007). Most institutions face challenges in their effort to create and implement policies which are intended to both minimize the risks associated with references for ex-employees and still allow adequate, honest references. The Equality Act 2010, for instance, provides for the uniform issuing of employment references. According to Marson (2013) this means that despite the non-existence of a duty on the university to give references for former employees, once one has been given, the rest of the employees are entitled to the same treatment. In some cases, university supervisors and administrative personnel are asked to provide references on well-behaved employees for whom they can give positive references (Marson, 2013). The leaders may also get inquiries about workers whose performance in employment positions is below average or those who have engaged in felony. Providing a favourable reference to a well-behaved and capable employee may result in minimal liabilities for the university, although some of such learning institutions have come under a hail of suits by employees who believe that references for them were not adequate enough. Serious liabilities usually follow when the university provides a ‘defamatory’ response to a request for reference regarding an employee whose performance is unsatisfactory or one who is problematic. Employees who believe that the university did not exercise the duty of care often open legal proceeding against the university and the individuals who were responsible for their defamation, in which case, such university personnel do not enjoy the immunity that business executives in limited companies have against such liabilities. References Austen-Baker, R. 2011. Implied Terms in English Contract Law. London: Edward Elgar Public. Bosch, G., Rubery, J., and Lehndorff, S. 2007. European employment models under pressure to change. International Labour Review,146(3/4), pp.253-277. Elder, B., and Gerdes, S. 2007. Is A Job Reference Really a Reference? Addressing Employer Name, Rank, and Serial Number Policies through Job Reference Immunity Legislation. Gergen, M.P. 2013. Negligent Misrepresentation as Contract. California Law Review, 101(4), pp.953-1011. Hoult, V. 1998. Legal regulation of employment reference practices. The University of Chicago Law Review, 65(1), pp.115-178. Journal of Business Inquiry: Research, Education & Application, 6(1), pp.19-27. Marson, J. 2013. Business Law Concentrate: Law Revision and Study Guide. Oxford: Oxford University Press. Sam, M. 2004. The Truth and Nothing but the Truth? The Legal Liability of Employers for Employee References. Industrial Law Journal, 33(1), pp.59-67. Shearer, R.A., and Icenogle, M. 2012. Defamation liability of employers for compelled self- publication: a hot trend that fizzled. Labor Law Journal, 63(4), pp.236-244. Read More