Evaluation of the Liability of Employers for References - Essay Example

Liability of employers for references Introduction In the recent years, many people have become hesitant to provide information regarding their former employees to prospective employers due to the threat of potential legal liability. There are a wide range of legal issues that surround employment references and other information provided by employers about their former employees. In reference to common law, there are four potential sources of liability arising from employment references. These include defamation, invasion of privacy, retaliation and negligent referral or breach of duty to warn (Flanders & Clegg, 2006 p.8). This paper critically evaluates the liability of employers for references, in relation to the common law duty of care. In addition, the paper examines how the liability of a university such as the University of Sussex deters regarding references given to potential employers in respect to current or former students. As mentioned earlier, there are four sources of liability arising from the provision of employment references to prospective employers. It is necessary to critically examine each one of them. Defamation arising from the common law In common law, defamation refer to any communication that tends to harm the reputation of another with the aim of lowering them in the estimation of the community or preventing third persons from associating with them. In determining whether a communication is defamatory or non-defamatory, the applicable test at common law is how the subject of the communication interpreted the communication (Deakin & Morris, 2005 p. 56). There are compensatory and punitive damages available for a successful defamation claim. This depends on the level of malice towards the defamed party. Thus, punitive damages may be available in instances where the communication was made with express malice or actual malice. There are two major defenses to defamation claims: truth and privilege. Truth is an absolute defense to defamation claims. In order to establish truth defense, an employer must affirmatively prove that the information or statement given was truthful. In this case, the plaintiff is not necessarily required to prove that statement or information was false. The most commonly used defense is that of privilege. In this regard, it is argued that the employer has a particular privilege in making the defamatory statement. Thus, the defense of privilege provides that an employer is immune from liability from making defamatory communication. Further, there are two types of privilege: absolute privilege and conditional privilege. When an employer has an absolute privilege regarding their comment about former employees it implies that the employer has complete protection irrespective of the motive of communication. Thus, this privilege does not apply in employment reference situation (Wedderburn, 2002 p.19). More often than not, absolute privilege applies to communication made by judicial officers, legislators during legislative proceedings, as well as communication made by some government officials. On the other hand, conditional privilege provides protection based on the employer’s motivation. Thus, it applies to those people who have legitimate common interest with the recipient of the communication. For instance, a conditional privilege may be used to protect the employer when the information is given to business partners, fellow shareholders, fellow corporate officers and other professional interests. Based on this, employers have a duty of care to protect those they have legitimate common interest from risk that could be posed by employing such Privacy implication of employment information As a source of liability arising from the provision of employment references to prospective employers, privacy implication of employee information is meant to prevent the disclosure of information regarding their privacy. Through this, it is evident that employers have a duty of care to safeguard the private information regarding their employee when providing employment reference information to prospective employers This can best be explained through Zinda v. Louisiana Pacific Corp case in the United States (Morris et al., 2002 p. 115). In this case, the court examined the conditional privilege in regard to privacy rights. The employers newsletter reported the employees movements. In case of a termination of employment, the newsletter indicated the cause of the termination. Zinda’s termination was reported as being for falsifying of employment forms and the newsletter was circulated all over. The plaintiff filed for a claim of unreasonable publicity. In the case, the Supreme Court affirmed that the employees of the Louisiana Pacific Corp had an interest in knowing there reasons for the plaintiffs discharge. The court concluded that it was the responsibility of the jury to determine if the employer lost conditional privilege through its excessive publishing of the information. Whereas the employees of the company were had an interest in knowing the reason for the termination of the plaintiff, the newsletter may not have been the reasonable way to serve this interest. This is an indication that former employees have a duty of care not to engage in unreasonable publicity of the reference information regarding their former or current employees. Retaliation claim for negligence As a source of liability arising form the provision of employment references to prospective employers, retaliation claim for negative reference is meant to protect employees from information provided for retaliation purposes. Thus, a former employee is entitled for claims for retaliation if their former employer provided negative references after discovering that the former employee complained about illegal discrimination or has filed a discriminatory action against them. Therefore, employees have a duty of care to ensure that the reference information about their employees given to prospective employers does no contain retaliatory motives. Negligent referral or duty to warn Under negligence referral, employers may be liable for providing reference statement or information that is untrue(Davies & Freedland, 1983 p. 115) . They may also be liable for omitting information regarding the employee’s dangerous and criminal propensities. Based on this, former employers have a duty of care not to provide untrue information regarding their employees to prospective employees. In addition, employees have a duty to accurately represent whether the employer could become a foreseeable risk to another employee if employed by the prospective employer. These doctrines are applicable to individual, organizations or institutions. This includes even Universities. Thus, the University of Sussex for instance, may be held liable for providing defamatory statement or information about its current or former student to a prospectus employers. On the other hand, the University may be found liable if it provided information that have negative privacy implications on its current or former students. Thirdly, the University is also liable for any information provided about their students for retaliatory purposes. Finally, University of Sussex, or any other university may be liable for providing reference information that is untrue or omits information regarding the student’s potential risk to the prospective employer. As such, the liability for providing reference information about its students does not differ from the such liability for other individual or organizations. Thus, the university has a duty of care to provide true and non-defamatory information, which does not omit any helpful information and devoid of retaliatory motives. Conclusion As sustained from the foregoing analysis, it is evident that liability of employers for references is meant to protect employees against false reference information by their employees or former employees. In the United Kingdom and other jurisdictions, this liability is based on four major sources. These include defamation, invasion of privacy and negligence referral or breach of duty to warn. The University of Sussex and other Universities in the United Kingdom are also liable under these sources of liability for providing reference information. References Davies, P. & Freedland, M. 1983. Labour and the Law. London: Stevens. Deakin, S. & Morris, G. .2005. Labour Law. Oxford: Hart. Flanders, A. & Clegg, H.2006. The System of Industrial Relations in Great Britain. Oxford: Blackwell. Franks, L.2007. Committee on Administrative Tribunals and Enquiries: Report. London: HMSO. Hepple, B. 2005. Labour Laws and Global Trade. Oxford: Hart. Lewis, R. & Clark, J. 1993. Employment Rights, Industrial Tribunals and Arbitration: The Case for Alternative Dispute Resolution. London: Institute of Employment Rights. Morris, H., Willey, B. & Sachdev, S. 2002 Managing in a Business Context: A HR Approach. London: Prentice Hall. Summers, C. 1969. Collective agreements and the law of contracts’ Yale Law Journal 539(1), 39-52. Wedderburn, K.W.2002. Employees, Partnership and Company Law. 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