Common Law Duty of Care - Essay Example

? Common Law Duty of Care + Common Law Duty of Care The legal systemof England and Wales recognizes the need to protect employees from practices, which in one way or the other would limit or violate the freedom of the employee. Under the common law legal system that is applicable in England and Wales, the employers have a duty of care to exercise against his employees (Holland 2013 pp67). In the present era, aspects of human rights violation often nag employers who fail to uphold the law or neglect certain clauses of the law. While the intention of the common law duty of care is to protect the aggrieved parties from incurring damages resulting from negligence, the law extends to promote sanity in the relationship of the employer and the employee. Arguably, the duty of care predisposes the human resource departments of various organization tend create organization policies that respect the rights of the employee in order to avoid legal feuds. Many institutions are hesitant to provide information about form students to prospective employers due to the fear of potential legal feuds. The fact that former employer had a direct engagement with the departed employee to a given extent makes him liable to any issue which he disseminate to the prospective employer that might amount to damages. The student or employee is likely to sue or seek legal arbitration in a situation where he or she feels that the former institution violated his or her right by offering certain information that damages his or her identity. Under the duty of care, defamation is a communication that intends to harm the reputation of the target party so as to limit the ability of the ability of the party to associate with a third party. The law protects offer punitive and compensatory damages for successful defamatory claims. The issue that is contentious in acting as a referee for the university student is the fact that such association might attract legal liability. In some situations, the institution might be willing to provide the confidential information about a former student whom in the institution’s view does not deserve consideration for employment because of his or her conduct. There is no legal provision that dictates that the institution must provide a reference to prospective employers. However, the existing legal obligation provide that universities should exercise due care when compiling a reference report of a student. The institution owes a duty of care to the student to whom such reference information is provided and to the addressee who sought the reference. The employer might sue the University for Negligence if it fails to provide reference information requested about the student (Williams and Zumbansen 2011 pp134). On the other hand, the student might sue the institution if it feels that the information addressed to the addressee violated his or her right. Most institutions feel obligated to respond to request for a reference where reasonably requested for employment or academic purposes (Grace and Gravestock 2008 pp 46). Failure to provide the reference could disadvantage a student application and could be deemed to be discriminatory on grounds of race, sex, disability, or age and be subject to legal action. Some people have failed to secure job opportunity from prospective employers or have faced the sack based on the reference information addressed to the prospectus employer by their former employers. Such outcomes often attract legal suits. In case Spring vs. Guardian Assurance Plc and Others; HL 7-Jul-1994, the complainant submitted before the court that the reference given by his former employer influenced his sacking. In the reference letter, his former employer indicted that he was a man of little or no integrity. In this case, the opinion of the court held that an employer was liable for negligence and damaging reference given on behalf of the employee. The court noted that a duty of care was owed to the former employee. Similarly, in Cox v Sun Alliance Life Ltd (2001) there was sustainable evidence that former employer damaged the reputation of the complainant. Although the intention of giving responding to reference request is to shed light on the character of the former employee, such information should be accurate and all the wording used carefully selected. If the action of the former employer were not damaging or did not bear any malicious information, the court would have dismissed the suit on the grounds of inadequate evidence to sustain the submission of the plaintiff. In McKie v Swindon College [2011] EWHC 469 (QB), the claimant who worked in higher management in Swindon College file a petition in relation to reference addressed to Bath College by his former employer. The complainant submitted that he lost his job because of the reference letter addressed to his employer by the former employer. The reference indicated that former employer could not accept the claimant on its premises. Upon evaluating the arguments submitted, the court held that former employer was liable to the damages that resulted to from the reference. Further, the former employer owed a duty of care to the complainant. In similar suit, Bartholomew vs. London Borough of Hackney and Yeboah; CA 23-Oct-1998, the complainant submitted before the court that reference addressed to his employer by the former institution contributed to his suspension. When the court reviewed the evidence adduced before it in relation to the reference, the court held that content of reference was fair and it did not in any way damage the reputation of the complainant. Based on the above arguments as well as the cited court decisions, the University of Sussex is liability to the duty of care when responding to a request of reference. Under the law of tort, an individual owes a duty of care to other individuals not to cause any damage or harm to them (Kelly Hayward, Hammer and Hendy 2013 pp123). It follows from this law that University of Sussex must exercise care not to cause harm in certain situations. To establish whether there is duty of care, the court looks at three things. First, was harm reasonable foreseeable. Second, were the defendant and the claimant in close proximity, and third is it fair and reasonable to impose a duty of care on the defendant on this situation. In conclusion, under the law of tort, an individual or institution owes a duty of care to the other person not to cause harm to them. The law does not provide for the request of reference, but various institutions often respond to such request in order to exercise their civil duty as well as to avoid disadvantaging the party requesting for such information. To avoid violating the law, individuals and institutions should provide accurate information. Bibliography Bartholomew -v- London Borough of Hackney and Yeboah; CA 23-Oct-1998. Cox v Sun Alliance Life Ltd (2001) Grace S and Gravestock P 2008. Inclusion and Diversity: Meeting the Needs of All Students. London: Routledge. Holland J 2013. Employment Law 2013. Oxford: Oxford University Press. Honeyball S 2012. Honeyball and Bowers' Textbook on Employment Law. Oxford: Oxford University Press. Kelly D, Hayward R, Hammer, R and Hendy J 2013. Business Law. London: Taylor & Francis. Kidd v Axa Equity & Law Life Assurance Society plc and another [2000] IRLR 301 HC McKie v Swindon College [2011] EWHC 469 (QB) Spring -v- Guardian Assurance Plc and Others; HL 7-Jul-1994 Williams A C and Zumbansen P 2011. The Embedded Firm: Corporate Governance, Labor, and Finance Capitalism. Cambridge: Cambridge University Press. Read More