Posted: November 19th, 2022

Duty of Care: Employer Reference

Duty of Care: Employer Reference

“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 in respect of current (or former) students.”

Recommended Readings for the Assessed Essay:

1) Careless words cost jobs

2) UCL’s Guidance on Writing References

3) Middlemiss – The Truth and Nothing but the Truth

4) Desmond v Chief Constable of Nottinghamshire Police

5) Jennifer Lee – Much Obliged

6) Spring v Guardian Assurance plc.
Introduction
This paper seeks to address how the common duty of care applies to the references given by employees to either former of current employees. Also, the paper identifies how the university liability varies regarding references issued to former or current students. Therefore, we will discuss in this work duty of care in the common law and its connection to issues on references.
In law, duty of care is a category of the tort of negligence (TON). In law, a tort is a civil action that can only be compensated by damages. The three fundamentals of a tort are duty of care, its breach, and loss due to breach. Ones acts or omission may harm or cause damage to a neighbor owed to negligence, trespass, et cetera that lacks duty to care. In tort law, the employers have a legal obligation (duty of care) to protect their employees (former or current) from any statements of harm. Employees must consider all reasonable steps and measures to ensure their employees well-being, safety and health is provided (New Law Journal, 2011). According to the law, employers are required to adhere to appropriate safety, health and employment law, as well as the common law of duty.
Discussion
Employers have a certain level of liability regarding statements of reference for former employees. Employers and employees have a role to care and provide authentic/true description of former employees’ potentials and qualities. A reasonable employee reference is grounded on truthfulness and fairness. Therefore, it is upon employers to avoid giving inaccurate references or information about former employees.
As a matter of fact, it is the employers and not their employees who need to be held responsible for the conducts and well-being of employees. For instance, an employee who gets injured while working is under the responsibility of his/her employer regardless of the employers’ intention to cause no harm. In duty to care employers are liable to guide the employee behavior and must be in the position to share in any good or bad result of the employee. In Spring v Guardian Assurance plc of 1995, the crew of lords decided that the employers who provide references of employees, either former or current, have a responsibility of duty of care and are liable to ant economic loss, and physical damage as a result of misstatement/negligent.
In a recent case of Kidd v Axa Equity and Law Assurance Society plc of 2000, the judge noted that while a reference provided must be true, there employer has no further obligations to make the reference full and comprehensive. The courts use the principle of negligent misstatements which falsely describes employee as one of the breach to duty of care. In references, misstatements are those accounts that presents false image of employees by either overlooking or information that are likely to cause economic loss for employees. Moreover, as per the case of Bartholomew v London Borough of Hackney, 1999, the judges held that employers do not need to give comprehensive and full information of employee in the reference as long as the information is accurate. The court also expounded the principle and states that even if the information is correct, it should not exist in such a way that it gives the reader an unfair impression regarding employee.
Duty of care also applies on current employees. In the example of TSB Bank plc v Hams, the employer gave a final warning to Ms. Harris regarding her conduct and she began seeking for other jobs. The bank issued a reference letter to potential employer which mentioned 19 complaints about her, though she was not aware about two of them, making her to lose the job. When Harris claimed an unfair dismissal, the court ruled on her favor. In the common law duty of care, and employer liability for reference, the employer breaches the implied term of confidence and trust in employee if he discloses confidential information about the employee, even though the reference may be accurate. It is a breach of confidence and trust when an employer discloses complaints to others regarding employees if he or she had no opportunity to respond to the claims.
Inclusion of information in the reference must be thoroughly investigated and scrutinized to give the employer confidence to believe in all facts provided. Any ongoing cases must be settled and the outcomes clearly communicated to the employee to exclude the doubt in employee concerning his reference. An example of an unfair reference is also seen in the case of Cos v Sun Alliance Life Limited of 2001, when the employer wrote an unfavorable references that lead to termination of their jobs. The court ruled that it is the employer’s responsibility to issue accurate and fair reference.
Learning institutions are also required to consider duty of care when writing references for their current or former employees as well as students to potential employers. In a case of McKie v Swindon College, the plaintiff left his job at the college (the defendant entity) with a glowing reference and was afterwards employed at the University of Bath, which demanded that McKie liaised with the former employer (Montague, 2013). The school letter sent the letter to Bath stating the previous conducts of McKie hence cost his current job loss at the University of Bath. When the plaintiff claimed damages, the court ruled against it stating that the email sent to the University of Bath did not serve as a reference and besides, it contained untrue and fallacious information. The action by the University was deemed just, fair and reasonable and the loss was verified. What was clear from the McKie is that careless, informal talk regarding former employees may cost claim in damages. It is the mandate of the employers to carefully consider the correctness of comments made on former employees, and make sure that the claims or such communications adhere to the minimum standards of truth/fairness. As the case exemplifies, time passage alone will not hinder the relationship between the former employee and the employer from practicing duty of care.
The same principles of liability and duty of care in the Universities that applies to the employees also applies to the students. Courts need to use the same guidance to judge to see the proximity existing, and the professional capacity of colleges in relation to students relying on professional reference. This is likely to be deemed fair, reasonable, and just based on proximity. The crew of lords should also look at foreseeability, availability of misstatements, and any casual links to loss. Universities are not often mandated to issue references. However, when some professions/jobs mandate it to do so, and people may raise claims of unfairness. A case example is that of Coote v Granada Hospitality limited of 1999, where former workers petitioned for claims of sex discrimination when their previous employers denied them a reference.
Today, as a result of fear of the courts decisions, following the precedence set in the courts, employers’ lawyers advise their clients to reduce the risks of liability of references. Some employers even refuse to issue references altogether or limiting it to truthful matters including employment period, job titles, and dates (Middlemiss, 2004, p.2). Another suggestion for employers writing references is to place a disclaimer on the reference. For instance, “this reference is issued on the ground that the employer will not accept any liability which may arise from reliance on the information enclosed in it.” Also, the employers must be informed regarding the disclaimer since they may not generally know it. Also, as seen in the case of McKie v Swindon College, liability is subject to reasonableness as per the unfair contract terms act 1977.
Conclusion
We can conclude that the common law of duty care is important to employers who are required to give references both to former and current employees. The same law applies to universities both with employees and students references. Employers and institutions are liable in case they fail to provide accurate information regarding their employees or students to the employers. The conditions for the law of duty of care include loss foreseeability, proximity, reasonability, and fairness, therefore, any negligent misstatement in the references are linked to loss for either student or employee and the employer will be liable for damages.

References
Labour &Sun Alliance Life Limited., 2001. Careless Words Cost Jobs. Received from https://www.thompsonstradeunion.law/news/lelr/weekly-issue-63-october-2001/careless-words-cost-jobs
Middlemiss, S., 2004. The truth and nothing but the truth? The legal liability of employers for employee references. Industrial Law Journal, Volume 33, Number 1.
Montague, J.E., 2013. Q&A Torts 2013-2014. Routledge.
New Law Journal., 9 Sept 2011. Employment Much Obliged.

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