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Critically evaluate, in relation to the common law duty of care, the liability of employers for references - Essay Example

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Referee’s Liability: Its Concept and Impact on Employment The practice of requiring a person seeking employment (hereafter referred as subject) to provide work or school references is customary. It is an effective means of ascertaining that the person is a perfect fit in the organizational structure—the skills set matches the needs of the employer…
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Critically evaluate, in relation to the common law duty of care, the liability of employers for references
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Download file to see previous pages The discussion in this paper shall deal with the liability of referee to the subject only. There is no law which specifically confers the right to demand for a reference thus there is no mandatory duty to issue one. It is not a matter of right but a mere privilege which may be stipulated in a contract or agreement. Without any contract, the discretion to give reference lies with the referee however there are instances when the refusal to issue reference is construed as discriminatory that compels the employer to issue one. Assuming the referee voluntarily agrees to issue a reference, it has legal obligation to the subject and the recipient to give an honest, truthful and fair account of the information it has in its possession. The award of damages which do not arise from actual physical injury or damage to property is frowned upon (Murphy v. Brentwood District Council, 1990). This is against public policy and the floodgates arguments (Spartan Steel and Alloys Ltd v. Martin & Co. Ltd,1973) where courts will be inundated with gratuitous suits. The exception from this general rule is when misleading statements are contained in the reference which resulted in economic loss then the aggrieved party may demand compensation for such breach of duty. For duty of care to exist nonetheless the standards enunciated in the leading case of Caparo Industries v. Dickman (1990), must be complied with: the injury or damage suffered by the aggrieved party was reasonably foreseeable; sufficient proximity or special relationship between the parties; and it is fair, just and reasonable to impose liability. These elements are mandatory and concurring where the absence of one element negates the existence of duty of care. It is not sufficient that the referee made derogatory remarks that damaged the reputation of the subject it must be shown that the referee has a special relationship with the subject such as that of an employer and employee or that of university official towards their personnel or students. If the derogatory remarks was relied upon to reject the subject’s engagement, the imposition of liability is just, fair and equitable. The case of Spring v. Guardian Assurance (1995), is illustrative. The employer imputed dishonest conduct which became the basis for denying the employee’s employment which was later discovered to false. The court enjoined employers to exercise utmost diligence in the preparation of reference so as not compromise the economic prospects of subjects and take due care to protect the subject’s reputation. The court stated a caveat the referee should exercise due skill and care in the preparation of the reference before making it available to the third party since the recipient accord great importance on the reference issued. The referee must showcase the subjects’ skills and expertise to improve their employment prospects and not diminish it by imputing sordid personal traits. The value accorded the reference is due to the referee’s personal observation on the subject and if the subject is not personally known to the referee, the reference should be based on recorded facts. If a mediocre reference with unproven allegations is disseminated to prospective employers contrary to the subject’s qualifications warrants the award of damages. The right of the ...Download file to see next pagesRead More
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