Critically evaluate, in relation to common law duty of care, the liability of employers for references

Critically evaluate, in relation to common law duty of care, the liability of employers for references

How, if at all, does the liability of a university differ regarding references given to potential employers in respect of current (or former) students.





Does the common law duty of care apply to references given by employers to current (or former employees)? Plus how, if it at all, doesdoes the liability of a university differ regarding references given to potential employers in respect of current (or former) students? In this essay, I will critically evaluate all issue of liability which is based on the duty of care and how it connects to the issue of references.

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In English Law, duty of care comes from the Tort of Negligence.  A tort is a civil action which can be compensated by damages (Van Wijck and Winters 2001). There are three elements that make up a tort; duty of care, breach of that duty and harm or loss occurred as result. In Donoghue v Stevenson (1932), Lord Atkin ruled that manufacturer owed duty of care to neighbor, defined as someone you can reasonably foresee will suffer harm or loss by your acts or omissions (MacIntyre 2012). 

To prove someone is owed a duty of care and a possible breach, a three stage test is applied and this done by asking firstly if harm or loss was foreseeable, if the relationship is close using the caparo decision. In Caparo v Dickman [1990] UKHL 2, courts ruled that there must be sufficient proximity between wrongdoer and injured party for duty of care to exist. Lastly, courts also have to consider if the situation is fair, just and reasonable to impose a duty of care e.g. on rescue services. When a person is owed a duty of care, they need prove breach of duty of care using the But for Test to prove causal link between loss suffered and action of defendant. If there are lots of actions, courts loo at one action that has a more than 50% balance of probability of causing the loss (MacIntyre 2012; McBride 2004)

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In order to answer to answer how common law duty of care applies to references given by employers to current (or former employees), Spring v Guardian Assurance plc [1995] 2 AC 296 (HL) is the most often referred to. In this case, House of Lords held that an employer who provides a reference owes a duty of care to the subject of the reference. This duty relates to taking reasonable care in making sure the information on which it is based is accurate. The Lords ruled that, if the subject of a reference suffers economic loss due to the employer's failure to meet this duty, the employer is liable to pay damages to the employee (MacIntyre 2012).

In Kidd v Axa Equity and Law Assurance Society plc[2000] IRLR 301, the courts applied the principle of negligent misstatements that are falsely critical of employee as one such breach of duty of care. In essence, negligent misstatements in references are those statements that present a misleading image of employee by either including or overlooking some information that will foreseeably lead to economic loss for the employee. Employers don’t have to provide a full and comprehensive disclosure about the employee as long as information is accurate. This was also argued in Bartholomew v London Borough of Hackney [1999] IRLR 246, where the courts expanded on this stating, even if information is accurate, it should not be presented in such a way as to provide the reader with an unfair impression of employee (Callegari 2002). 

Any information that is critical of the performance or conduct of employee that an employer feels must be included in a reference has to have been investigated thoroughly and the outcome should give employer reasonable grounds to believe all facts are accurate. Any ongoing investigation about an employee’s conduct has to be completed and finalized with the outcome clearly communicated to the employee so that there is no doubt they know it will be included in the reference.In Cox v Sun Alliance Life Limited [2001] IRLR 448, the employer provided an unfavorable reference to a resigned employee resulting in termination of their new job. The employee argued that their old employer had failed in their duty to provide an accurate and fair reference and the courts agreed because a previous investigation about employee’s conduct had not been completed, verified and communicated to employee (Callegari 2002).

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In another case McKie v Swindon College [2011] EWHC 469 (QB), Mr McKie left his job at Swindon College with a glowing reference and was subsequently employed at the University of Bath which required that he liaises with his old college. Swindon College then sent a critical email to Bath regarding McKie’s previous conduct and thus lost his job at Bath University so he claimed damages citing the email was a reference. The judge ruled against that argument disagreeing it was a non-reference but nevertheless agreed email about McKie contained “fallacious and untrue” contents that resulted in job loss. The judge ruled that the breach was due to a negligent misstatement, and that it was reasonable to foresee it would lead to him losing his job at Bath, and since parties were close in relationship (Caparo decision), the claim was deemed fair, just and reasonable with causal link to loss verified (Edwards 2002 p42).

Using the same principles discussed on the liability of the University of xxxxxx, Courts will judge to see if there is proximity and given the professional capacity of the university in relationship to students who rely on it for professional references, it is likely to be deemed just, fair and reasonable to create a duty of care based on proximity. Courts will also look at foreseeability, presence of negligent misstatements, and causal link to loss using the But for Test (Allen 1994). While the university or (other employers) is not mandated to provide references, some jobs mandate it and even when such mandate doesn’t exist, people can make claims of discrimination such as in Coote V Granada Hospitality Ltd 1999 ICR 100, where former employee claimed sex discrimination when former employer refused to provide them a reference (Callegari 2002).

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In conclusion, the common law of duty of care applies to employers who provide references to current and former employees. This also applies to the University of xxxxxx who can also be liable if they fail some of the conditions that lead to breach of this duty. These conditions include foreseeability of loss, proximity, it is just, reasonable and fair to expect this duty thus any negligent misstatement in reference with causal link to loss for employee or student will be liable for damages.

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