Introduction
Employers have a duty to care while making statements regarding a former employee’s reference; the employer have an obligation to provide valid statements in regard to former employee’s potential and quality, therefore a reasonable reference required to be truthful and fair. The employers have to avoid any false statements that may lead to negligent misrepresentation or misinterpretations. In other words, the tort of negligence occurs if a person or company has a duty of care by taking precautions and their failure cause damage to another party. This file will focus on the obligation of University of Sussex as an employer for giving references in respect of former or current students.
University’s Duty of Care for Student Reference
A tort is defined as a civil action that can be compensated by damages; the three elements of tort include duty of care, breach of that duty and damages occurred as a result. The Donoghue v Stevenson [1932] case is a good example in which Lord Atkin provided a judgement that the manufacture holds a duty of care toward his neighbour, and he shall be liable for neighbour’s damages (Gallagher and Hodge, 2012). The Caparo v Dickman [1990] case provided a tripartite test to establish a person’s duty of care which include, damage was foreseeable, availability of requisite degree of proximity between parties and it is reasonable and fair to expect the duty (Hartshorne, 2008). Spring v Guardian Assurance PLC [1995] case is a good example to understand University’s duty of care towards students’ references. The House of Lords provided, in this case, that employer who provides reference hold a duty of care relating to the reference. The court provided that if a party suffered loss due to inaccurate reference of the employer than the employer shall be liable for damages (Mustafa, 2014).
In Kidd v Equity and Law Assurance Society PLC [2000] case, the principle of negligent misrepresentation was applied by the court on false critical claims of the employer (Griffith, 2009). In other words, the misleading and misrepresenting references that lead to economic loss are considered as negligent misrepresentations. An employer is not obligated to provide comprehensive disclosure regarding his employees as long as the information provided is accurate. Similar arguments were discussed in Bartholomew v London Borough of Hackney [1999] case in which court provided that accurate information should not be provided in a misleading way unless it will be constituted as negligent misrepresentation (Farrington and Palfreyman, 2012). If an employer believes that critical information should be included in an employee’s reference, then such information should be thoroughly investigated, and the employer must have reasonable ground to believe in the accuracy of such detail. The employer must properly complete an investigation regarding an employee's conduct, and the result should be clearly communicated to avoid any misrepresentation or miscommunication in the reference. In Cox v Sun Alliance Life Limited [2001] case, an unfavorable reference was given by employer which resulted in the termination of employee’s new job (Van Jaarsveld, 2006).
The employee filed a suit by stating that employer failed his duty of care to provide true and fair reference hence he should be liable for negligent misrepresentation. The court decided that employer has conducted a proper investigation regarding employee’s reference and the result of such investigation is completed, verified and communicated to the employee properly. Therefore, the employer cannot be held liable for negligent misrepresentation. The McKie v Swindon College [2011] case is another good example. In this case, Mr. McKie left his job at Swindon College with excellent reference due to which he was quickly employed at the University of Bath. The new employer required that he liaises with his old employer. Swindon College then sent a critical email due to which Bath University fired McKie; McKie filed a suit against Swindon College for providing a false reference. The court dismissed the claim of false reference, but, the court argued that the email contain false and fallacious content regarding McKie that resulted in job loss. The judge considered it as a negligent misrepresentation because Swindon College filed its duty of care, the parties were in a close relationship, and the claim was deemed reasonable and fair (Mulheron, 2016).
The points mentioned above apply to the University of Sussex as well. In a negligent misrepresentation case, the court considers whether there is a close enough proximity between parties. The University of Sussex has a close professional relationship with students because they rely on its professional reference that other parties considered as accurate, fair and reasonable, therefore, the University of Sussex has a duty of care towards its students’ references. In Coote v Granada Hospitality Ltd [1999] case, the former employee filed a suit of sexual discrimination against her employer for not providing a reference (Ellis and Watson, 2012). The courts also considered foreseeability, presence and negligent misrepresentation while determining a party’s tortious liability. Although the University of Sussex is not mandated to provide their reference for each student but some jobs compulsory require employees to bring university’s reference (Middlemiss, 2012). Therefore, the University of Sussex has a duty to care regarding reference of both current and former students, and the university should conduct a thorough investigation to ensure that statements in references are accurate and fair to avoid any suit of negligent misrepresentation.
Conclusion
To conclude, the common law duty of care applies to the reference provided by the employer to its former or current employees. An employer has a duty of care while providing employee’s reference because false claims can cause economic loss to the employee. There are three components analyse by the court to determine negligent misrepresentation, which includes foreseeability of damage, proximity relationship between parties and it is just and fair to expect the duty. The similar principle applies to the University of Sussex, and it can be held liable for negligent misrepresentation for providing false statements in its former or current students’ reference.
References
Ellis, E. and Watson, P., 2012. EU anti-discrimination law. Oxford University Press.
Farrington, D. and Palfreyman, D. eds., 2012. The law of higher education. OUP Oxford.
Gallagher, A. and Hodge, S. eds., 2012. Ethics, Law and Professional Issues: A Practice-Based Approach for Health Professionals. Palgrave Macmillan.
Griffith, R., 2009. Employment references and the law. British Journal of Healthcare Management, 15(5), pp.234-238.
Hartshorne, J., 2008. Confusion, contradiction and chaos within the House of Lords post Caparo v Dickman.
Middlemiss, S., 2012. Employers liability for employee references and victimisation. Statute Law Review, 34(2), pp.138-151.
Mulheron, R., 2016. Principles of Tort Law. Cambridge University Press.
Mustafa, E., 2014. Employment references and the law. Human Resource Management International Digest, 22(7), pp.39-42.
Van Jaarsveld, M., 2006. Words, Words, Words-More than Just Words in Employment References-Some Thoughts on the Liability of Employers for Calamitous References. De Jure, 39, p.620.
