Liability of the Employer for References - Essay Example

?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 by Author’s Name Name of the Class Name of the Professor Name of the School City, State 15 August 2013 Introduction to Liability of the Employer for References Unemployment remains a problem for most citizens of different nations across the globe. One of the reasons that prevent employees from finding jobs or securing contracts is the negative references delivered to their potential employers, upon employee’s evaluation for the jobs. Most people especially in the third world countries tend to ignore these actions, but in the western world, once such an issue is determined, blame is passed on the former or current employer upon reference information reaching a prospective employer may end in a lawsuit. Similarly, former employers may tend to show mercy on their employees in certain dishonest acts worth mentioning to the future employers, and this risks the operation failure or dishonesty of another organization or employer. These factors put the former employers at a risk of been held liable for a kind of defamation. In one way, the employers can provide certain information to the prospective employer, but may also avoid producing a lot of information that may prevent the employee from new employment. The chances are that the employers limit their information to evade exposure to defamation, or potential lawsuits that may cost them heavily (McCord, 1999). The employer is obliged to the duty of care to the prospective employers, upon injury or misfortune related to falsified information over a certain employee’s reference. The same case applies to the employee when his or her effort for job search is not successful, due to offensive referential allegations from the former employer. Companies should therefore give strict warnings to the managers and directors in the company, who perpetuate the release of incomplete information in a manner to extol or falsify real integrity factors of employees through their references, because they risk holding the company responsible for breach of duty of care. Below, several sources touching on privacy, retaliation, and arising from negligent and defamation cases of employers’ liabilities for references under various Acts are discussed. Liability for Defamation Employees can sue their former employers for release of disparaging statements, either orally or written that have can indirectly or directly lead to harm on their reputation, despite the high efforts to revise the Defamation Act, whose original version claimed defamation to consist of unprivileged publication of falsified information and derogatory issues, either actionable disregarding the special harm or its legal cause (Bally, 1989). That is, when the communication occurs, and it has a defamatory meaning, the third party who can be the prospective employer or the public is swayed away by the damaging reputation. According to Mac Kelly, a defamatory statement is that which tends to harm the reputation of another individual, and that lowers him in the society’s view, and prevents third persons from dealing or associating with the individual in subject (2001). However, with the increased technology that furthers globalization, information can travel very fast to different destinations, which increases the chances of spreading defamatory statements in a click of a button, let alone the oral statements. The English Law classifies defamatory statements into two; libel and slander, implying those recorded and that demonstrate a degree of permanence, and those orally made without justification respectively (out-law.com, 2008). The claim of the employee is left to the court to determine and interpret the statement in the context which it was made. It needs to evaluate the surrounding circumstances, audience, employer’s argument, and subject of the communication interpretation on the statement to establish the damage of the employee’s reputation or name. Once the jury is convinced that the employee’s claim is true and that the claimed defamatory statement produced by the employee infer to the employer’s conduct, the employer is held liable for the defamation conduct to the plaintiff (Hornak et al, 2008). Published defamatory statements range from declaration to a single person beside the plaintiff, to a large audience (say another organization or public) and compelled self publication. Depending on the level of harm caused by the defamation, the court determines the compensation for the damage. Most employers would get away with slanderous statements, especially where the claimant fails to produce evidence of actual damage, but libel statements can be difficult to defend, hence major causes of the punitive damages. Employers defence may not work best for them, and where the court ruling is in favour of the employee, then, they are obliged to compensate the employee for abandoning their duty to care. Employees may receive liabilities upon jury conviction of employers ‘acts like employee’s job termination based on false accusation, and use of defamatory remarks over time, with regard to the circumstances to be defamatory. However, despite all the evidence being proven, the employer can be excluded from the liability provided there is a lawful excuse, such as public documents and opinion pertaining public interest, or information categorized to be of qualified or absolute privilege. Such an example is the exclusion of the duty of care of constable of Nottinghamshire police to his opponent (Desmond) for providing information for criminal record Bureau on request for ECRC (Leveson, 2011). Liability for Negligence Employers may be accused of negligence in two broad concepts; first, arising from third party claims over poor referrals, which is the major interest and second, those brought forward by the terminated employees. In the case of negligent referrals to the prospective employer, it may take place in two ways; giving a good reference where it is not due, and neutral reference on employees, but fail to inform of the previously identified behaviour risky to the new employer. Suppose the former employer knew of the harmful and dangerous tendencies of their former or current employee, and provides a reference concerning him or her, which fails to warn the prospective employer of such behaviours and result to their damage, then, the claim is generally actionable (Feliu and Johnson, 2002). Employers are obliged to refer by exercising due diligence, otherwise, the tort of negligent misrepresentation may be applied. The former employer has a duty of care to the other employers to provide the correct and relevant information over the employees as reasonable care, and prevent them from further attracting loss or injuries through hiring inappropriate persons. Some references fail to mention of the past reported and proven gross conduct of the employees. In such a case, the image of the employee is disguised in the reference, only to recommend them for other jobs in the already filtered out information, but end up repeating their gross behaviour that harms the employer or company. This is a factor of negligent misrepresentation for misleading incomplete information, which the former employer can be held liable for, once the affirmative representation is proven in court. The former employer here would owe a duty to the subject employee’s new employer not to misrepresent facts in the employee’s reference (McCord, 1999). Similarly, some companies are very sensitive in the way they reveal reference information; and since they want to evade defamation lawsuits, they opt for neutral referrals, which entail strict limits of the information to disclose in a reference check. Such information may entail dates of employment, official title held, salary, and other awards depending with the agreed policy of the company. However, incomplete references increase the chances that unaware employers would go ahead and hire harmful employees, without the knowledge and warning of such employees’ propensities. On their part, they risk accusations of negligent hiring, while the former employers can be held accountable for negligence in referrals once proven in court. Compensation for the new employers is an additional cost for the former employer that can be avoided by not providing negligent references. In most cases, employers risk lawsuits while trying to strike a balance between not being sued for defamation, and misleading a prospective employer (Blake Lapthorn, 2011). Former employers also risk being sued by their former employees where negligence exists in the process of their job termination. At times, employees are laid off without a word, or on false allegations that are never given an opportunity for investigation among others. The liability the employer has to deal with is due to the damage caused in termination process. Employees can claim negligent in investigating the reason for termination, negligent misrepresentation in the reference document over their performance before termination, or negligently imposed harm during termination (Feliu and Johnson, 2002). In the work place setting, the relationship between the employees and the employer is based on the assumed responsibility of each partner. As such, the employers owe the employees a duty of care, which in breach if liable to negligence in the common law. Based on the case of Spring v Guardian Assurance in 1994 in the UK, the court ruling held the former employer (Guardian Assurance) liable for negligence in breach of duty of care in providing character reference of the plaintiff (Emond Harnden LLP, n.d.). Employees expect the companies as employers to prepare their reference with due care and skill, where the policy consents to provision of referrals. Claim under Invasion of Privacy Few of these claims succeed in court hearings because of the extended authority of other conventions in its domain. However, employees can claim compensation for the invasion of privacy by the employer due to release of references that provide private or confidential details that belittles them before the third parties. At times, employees may feel they have been placed in false light due to the false reference or public discipline that provides their private data. It is a common claim for employees in the United States, but takes a difficult position in the law of England. Under the European Human Rights Convention (EHRC), employees are entitled to their right of privacy, which entails their personal information. But the claim can be overridden in the sense that referral information was produced on grounds of authorized privileges, like disciplinary proceedings, let alone the absolute defences of truth and consent, which provides employers with immunity from defamation lawsuits. EHRC articles 6 and 8 influence the employees’ claim and employers’ liability through provided defences (Middlemiss, 2004).In the UK , the cause of action for the breach of confidence that relates with the invasion of privacy tort in the common law, now encompasses the abuse of private information. However, where the claimant demonstrates a necessary quality of confidence, its disclosure, which is cause for an obligation on the part of the accused employer under the circumstance that harms the employee, and without the authorized use of the information, can inflict liability on the employer for breaching the employee’s confidence. An example of such case is Coco v A. N. Clark on the claim of breach of confidence concerning commercially valuable technical information. Claim under Retaliation Under employment lawsuits, retaliation cases are the majority and most essentially a growing problem for employees, while parting with their former employers. In the course of employment, an employee may have made legal allegations over his employer, or supported a colleague as a witness of a discriminatory complain among other ways that may have cost the employer to give him an unfair reference that prevents her future employment. The employee can sue the former employer in claim for victimization that puts her at a disadvantage. Under the Equality Act of 2010, Section (27), an employer may be held liable of the action of victimization or harassment for protective actions of the employee, and breach of equality (legislation.gov.uk, n.d.). Employees in the UK are protected under the Equality Act of 2010 against victimization and harassment from their employers. If the unfair reference is proven in court and the employer held liable, claimant employees can receive awards for damages to an extent of restoring them to their position had they not been subjected to the offence. Other types of awards can also be awarded depending on the jury conviction of the accusation. Variation in liability of a University (such as the University College of London) from another regarding Employee’s References provided to Potential Employers There are several factors that can influence the variation of employers liabilities, beginning with limit of information an employer is willing to disclose. Some strictly have a policy that limits them to communicate on employee’s former position and salary, while others have a wider scope of information to offer, which increases their liability to negligence, invasion of privacy, or use of an offensive statement. For the University College of London, its limits depend duration of work and in what capacity (ucl.ac.uk, n.d.).Whether the employer has a different insurance cover for his business or not, exposure of certain information and the manner it was interpreted based on the circumstances may make one company to be sued for a different claim from the other. Similarly, employers are advised to develop a policy that employs consent to. If employee consent to the company policy of revealing certain information, and upon job transfer, the employer provides the prospective employer with the consented information as part of reference, no matter the claim for privacy to the information afterwards, the former employer would use the defence of consent against the claimant employee. This is unlikely for employers without the policy and who risk producing such information at the cost of privacy invasion. Employers need better ways of communicating reference information to avoid misinterpretation. While a verbal and telephone conducted reference risks misrepresentation accusations, libel referrals can help avoid these and too much disclosure of information, due to the ability to correct before delivery to the third party. Generally, liabilities are grouped into the four discussed categories and for universities, as employers, they are treated in the same manner as other businesses. Variation of these liabilities only occurs in the context that a damaging referral occurs. References Barry, A. M., 1989. Defamation in the Workplace: The Impact of Increasing Employer Liability. Marquette Law Review .72(2). [Online] Available at: http://scholarship.law.marquette.edu/cgi/viewcontent.cgi?article=1760&context=mulr [Accessed 14 Aug, 2013] Blake Lapthorn. 2011. Employers Reference was not negligent. [Online] Available at: http://www.bllaw.co.uk/services_for_businesses/employment/news_and_updates/employment_law_news_oct_2011/employers_reference.aspx [Accessed 14 Aug, 2013]. Defamation, 2008. [Online] Available at: http://www.out-law.com/page-5624 [Accessed 14 Aug, 2013] Emond Harnden LLP. n.d. U.K Decision rules Employers Liable for Negligent References. [Online] Available at: http://www.ehlaw.ca/publications/jan97/referenc.pdf [Accessed 15 Aug, 2013]. Equality Act 2010. n.d. [Online] Available at: http://www.legislation.gov.uk/ukpga/2010/15/section/27 [Accessed 15 Aug, 2013]. Felix, A. G. and Johnson, W. T., 2002. Negligence in Employment Law. [Online] Available at: http://www.bsk.com/site/files/NegEmpLaw_CH03.pdf [Accessed 14 Aug, 2013]. Leveson, A.M.P. 2011. Desmond V Chief Constable of Nottinghamshire Police. 2011[EWCA] Civ 3: [2011] WLR (D) 1 Mac Kelly, M.L., 2001. Employer Liability for Employment References. [Online] Available at: http://www.wisbar.org/newspublications/wisconsinlawyer/pages/article.aspx?Volume=81&Issue=4&ArticleID=1465 Accessed 14 Aug, 2013] McCord, L. B., 1999. Defamation vs Negligent Referral: A policy of giving only basic employee reference may lead to Liability. [Online] Available at: http://gbr.pepperdine.edu/2010/08/defamation-vs-negligent-referral/ [Accessed 14 Aug, 2013] Middlemiss, Sam, 2004.The Truth and Nothing but the Truth? The Legal Liability of Employers for Employee Reference. Industrial Law Journal. 33, PP. 59-67 References for Staff- Guidelines on Writing. n.d. [Online] Available at: http://www.ucl.ac.uk/hr/docs/references.php [Accessed 15 Aug, 2013]. Read More