The Liability of Employers for References - Essay Example

? Introduction In the modern times, the use of references in the workplaces has become a common practice whilehiring employees. This fact has made employees gain immense confidence that they will always obtain references on request. In addition, it is always the expectation of all prospective employers that employees should be able to provide references or allow the potential employer to obtain one from the former employer. One thing that is evident today is the fact that, in situations where an employer fails to provide fair or accurate reference either through carelessness, negligence, or malice, the employer may face legal actions. Issuing of references for employees or former employees by employers is a practice that is of interest to both the employer and the employee (Middlemiss 2013, p141). The employers have an interest in understanding the extent of their liability. On the other hand, the employees have an interest in knowing whether they have the right to sue employers for economic damage arising from unjust references. In understanding the liability of employers for references, the paper will look into the relevant principles of the law by reviewing cases related to the subject in question (Lee 2011). Case studies Spring v Guardian Assurance plc and others The spring v Guardian Assurance plc and others led to the realization of the importance of pursuing acts of negligence through unjust and unfair references. Before this realization, employees who suffered from unjust references only used the tort laws to search for justice (House of Lords 1995). The option of the tort laws was not common due to the evidential obstacles that the plaintiff faced. In the Spring v Guardian Assurance plc and others, the House of Lords came to a conclusion that, in situations where an employer decides to give a current or former employee a reference, it is the employer’s responsibility to take reasonable care in preparing or issuing the reference. It is also the employer’s responsibility to take care when verifying the information related to the reference. In addition, the House of Lords also concluded that, in situations where an employer issues a reference to a prospective or future employer, it is the employer’s responsibilities to provide care to that the employer in respect to the preparation of the reference. It further states that, in cases where a break of any of the duties occurs due to negligence in preparing the reference, the employer issuing the reference can be held responsible for damages to the employee, prospective employer or future employer (UKHL, 1994). The employer issuing a reference has the responsibility to act in a fair manner towards the employee to protect the employee from suffering from economic losses due to negligence in issuing the reference. The employer also has a duty of care towards the employer receiving the reference because the recipient employer relies on the reference information in providing employment to the subject of the reference (McBride 2004, p.420). Therefore, the employer’s decision to employ the employee is largely influenced by the information provided on the reference. This point makes it reasonable to hold the employer issuing the reference responsible for any economic damage that the prospective employer suffers (Middlemiss 2004, p.67). In another example, it was concluded in the Legal Assurance Ltd v Kirk that, in a situation where an employer makes an informal statement regarding an employee that is not relied on by a third party, there is no liability due to negligence even if there is no any reference issued. However, this claim was not accepted by the Court of Appeal because it was based on speculations on how the employer might respond when requested for a reference (Middlemiss 2004, p62). A different approach in understanding the liability of employers for reference is evident in Bartholomew v London Borough of Hackney. In this case, an employer issuing a reference for a former employee informed the recipient employer that, time the employee was leaving he had been suspended from work as a result of gross misconduct and disciplinary action had started. The employee filed a claim for breach of duty by the former employer arguing that, although the reference was true, it was unfair. In this case, the employee lost the case, but the court of Appeal had the opportunity to make clarity on the law in relation to this area. Other than being careful when preparing references, the employer should also ensure that the impression of the employee from the analysis of reference is fair (Bartholomew v London Borough of Hackney, 1999). Liability of a university for reference to employers The other area of common law duty of care is the liability of a university for references to potential employers in respect to existing or former students. Universities are frequently requested to issue references for their students to enable them get employment or move on for further studies. Just like the reference provided by employers to their employees, references issued to students are meant to provide the accurate and objective evaluation of the student. Similarly, the personnel issuing the reference have the responsibility of care to both the student and the recipient employer. Therefore, the reference must be accurate and fair (Nolan 2007, p77). Universities are required to adapt an overall policy for providing students with reference. The adopted approach is then communicated to all relevant departments as well as the students. In addition, developing an agreed standard reference for each student is effective in reducing staff workloads. It is a requirement that anyone who attends a university and completes a course should be given a reference. There is a provision on the contract between the University and the student that the student will receive fair treatment. However, claims for breach of the contract are likely to arise in cases where a reference is rejected or not issued within a reasonable time (Banakas 1998, p37). Referees issuing students with references are bound by a legal obligation to apply due skill and care when preparing references. Therefore, it is necessary not to act carelessly when issuing reference. This is because the university remains liable for references issued by the staff during their employment period. For this reason, the university has the right to take legal actions against staff members who issue malicious or defamatory references. Comparing this to principles in the liability of employers for the reference, the two practices are similar with no notable differences (Byrne 2008, p26). Conclusion The need for employers to issue references for their employees is on an increase. This makes it necessary for employers to provide the required information in a just and fair manner. As already discussed, employers who give damaging references are liable for their actions in circumstances where legal actions are taken by their employees. However, there are some practices that help employers in reducing their liability when issuing references. One such measure is to attach qualifying statements as part of describing the employee’s abilities and characters. The employment law is getting more interested on how references are developed to avoid cases of misleading or false impressions. The practice of issuing references is likely to go on due to increasing demands and expectations in different workplaces. On the other hand, the law is also determined in ensuring there is continued protection to current and former employees. References List Banakas, E. K. (1998), “Civil liability for pure economic loss”, Law for the millennium, London, United Kingdom National Committee of Comparative Law and The British Institute of International and Comparative Law, pp.1-42. Bartholomew v London Borough of Hackney (1999) IRLR 246 CA [Online] Accessed 15 Nov. 2013. Available at: http://www.bailii.org/ew/cases/EWCA/Civ/1998/1604.html Byrne, G. (2008), “Negligent misrepresentation: recent developments in English and Irish law”, Q.R.T.L. 2(4), pp. 22-27. House of Lords (1995). Spring v Guardian Assurance plc and others. [Online] Accessed 15 Nov. 2013. Available at: http://oxcheps.new.ox.ac.uk/casebook/Resources/SPRING_1%20DOC.pdf Lee, J. (2011). Much Obliged: The Level of Obligation Owed by Employers to Former Employees. [Online] Accessed 15 Nov. 2013. Available at: www.newlawjournal.co.uk McBride, N. J. (2004). “Duties of Care-Do they really exist?” Oxford Journal of Legal Studies 1(1), pp. 417-441. Middlemiss, S. (2004). The truth and nothing but the truth: The legal liability of employers for employee references, Industrial law journal 4(2). Pp 59-67 Middlemiss, S. (2013). Employers Liability for Employee References and Victimisation. Statute Law Rev 34 (2), pp. 138-151 Nolan, D. (2007), “New forms of damage in negligence”, M.L.R.70 (1), pp.59-88. UKHL (1994). Spring v Guardian Assurance (1994) http://www.bailii.org/uk/cases/UKHL/1994/7.html Read More