Common Law of Duty Care-Liability of Employers for References - Essay Example

The actions of the defendant must be foreseeably logical in that he/she failed to exercise the care that a reasonably prudent person would in the same circumstance thus neglecting his/her moral duty and obligation (Holmes, 2009, 2). For explicit jurisdictions of laws of duty care three tests and their accompanying principles are conducted, that is, the evaluation of whether the harm was reasonably foreseeable; whether there is a requisite degree of proximity between the claimant and the defendant, and whether is it fair, just and reasonable to impose a duty of care in line with public policy concerns (Bruggemeier, 2004, 4). With a variety of recognizable situations such as one road user to another, manufacturer to consumer, doctor to patient and solicitor to a client; where courts recognize the existence of a duty of care, this paper will evaluate employer to employee common law of duty care in relation to references given to potential employers.

In our case, the references would fall in the doctrine of “Respondeat Superior” or “let the master answer”, in which the university is the master and the potential employer and/or the graduate is the agent, such that the university is charged with responsibilities of negligence (Giliker, 2010, pp.4-5). For instance, the university owes duty care to the graduate in relation to giving background/ academic information to the potential employer and in cases where the university provides false information to the employer on the competence of the potential employee, then the university is charged with legal responsibility of lack of care on the part of the employer in relation to the employee.

Defamation is a liability with which communication or any social exchange of given parties tends to harm the reputation of another, lowering or under-estimating his/ her association with other people or the environment (Shuy, 2010, 2). In our case, for instance, the university exchanges information on the graduate’s competencies which in one way or another, intentionally or negligently, is false and/or ruins the graduate’s chances of getting hired and his/her future career path and profession. For this matter, the tests of whether the harm was reasonably foreseeable will depend on the information leaked to the potential employer in relation to the morally accepted or the limit of personal information that the institution is supposed to share.

The degree of proximity between the claimant and defendant, graduate and the university respectively, will apply in that the case law for academic institutions is to guide the graduates along their career paths and defamation at this point would make the university legally liable. The clause of whether it is fair, just and reasonable to impose a duty of care in relation to public policy would differ in such a case depending on the sensitivity of the information and its relevance to the potential employer (Glanon, 2010, 12). For example, on the issues of integrity and competence/qualifications in some sectors of the economy such as public finance, internal security, or public health, the institution ought to give the information regardless of the defamation injuries to the graduate; basing the argument on the public policy concerns, and thus differing from the provisions of the duty care.
Truth and privilege are the major defenses to the defamation claims that waive the University’s legal liabilities whereby truth as an absolute defense requires the university to affirmatively prove that the shared information was indeed truthful. At this point, the claimant is not required to prove the statement was wrong irrespective of the degree of proximity with the university and the aspect of reasonable harm to the claimant by the university. On the privilege aspects, the university has absolute privilege whereby the university is immune from liability of defamation regarding the motive of communication (Nelson, 2006, pp.3-34). The rationale in this is that as an agent for the potential employer and an institution of learning, the university is entitled to holistically develop the graduates for the job market thus giving it an absolute privilege of defamation if need be.

Conditional privilege on the other hand gives the university a waiver depending on its motivation that is, its common interests with the potential employer (Palmiter, 2009, pp.190-192). For instance, conditional privilege will protect the university if statements of graduate’s conduct are shared with potential employers in cases where employee integrity and code of conduct in the overall job market is a requirement.

Conclusion
As a master in our case, the provisions of the common law of duty care and its respective tests may differ with circumstances but holistically covers principles of relationships between the plaintiff and the defendant. The waiver of these liabilities on privileges may be lost in cases where the university gives false information; publicizes defamation to the unintended audience, if defamation is based on retaliatory claims for negative references in cases of discrimination and/or negligent referral and omission (Price, Duodu & Cain, 2010, 7) of duty to warn whereby the university gives untrue information or omits crucial or sensitive information on about the graduate.