Historically, the term common law used to mean the law that is shared by England as a whole. Currently, its meaning refers to a law which is not regulated by a legislation but instead is settled according to previous judicial decisions (Lucy, 2017, pg. 9). As a result, to answer in the best way to this essay’s question I am going to be referring to some old and some fresh cases.
In this very piece of writing, I will prove that the difference between employers and university/professors’ liability is very slight, almost absent. I am going to argue the liability of employers for references, referring to the relevant cases and then the responsibility of universities and their employee respectively.Is it fair for an employee to experience a loss caused by a reference letter which is biased and untruthful? As a personal opinion, it is clearly not, and this thought is widely agreed by the law.For instance, in order to demonstrate a tort of negligence, it is required for the plaintiff to provide that: the defendant owed the claimant a duty of care, that duty was breached and a reasonably foreseeable damage was caused by the breach.As in the beginning, the neighbour principle was the only requirement asked to be satisfied to prove someone’s liability, such as in a milestone case: (‘Donoghue v Stevenson’, 1932 AC 562 (H.
L.)). That principle was not really suitable enough for all cases, in fact, the House of Lords in (‘Caparo Industries Plc v Dickman’, 1990 2 AC 605) set a three-fold test to establish whether a duty of care existed or not. To comply with the test the loss had to be reasonably foreseeable, there was a sufficient relation of proximity between the claimant and the defendant and it is fair, just and reasonable that the law should impose a duty on the defendant (Lucy, 2017, p. 346).The first core legal point is that an employer does not have a constraint to grant an employee with a reference letter unless bound by the contract. However, once the reference is done in the first place a duty of care comes into play, which binds the writer of the reference to the recipient and the subject of it.
The reference in question must be authentic, true, impartial and not mislead. This is due to the landmark, striking case (‘Spring v Guardian Assurance plc’, 1995 2 AC 296 (HL)) in which the plaintiff sued for malicious falsehood, negligence and breach of contract. The House of Lords held that the reference has tobe truthful and frank. Therefore, the defendant was found guilty in breach of duty.Further cases, such as (‘TSB Bank plc v Harris’, 2000 IRLR 157) and (‘Cox v Sun Alliance Life Limited’, 2001 IRLR 448) have proven that a significant number of factors have to be taken into account when it comes to writing reference letters. For instance, any breach of trust and confidence or breach of contract; negligent misstatements; defamation (Thompsons Solicitors, 2001).Employees are clearly in an underdog position as a result of any disclaimer inserted/attached to the references or omissions of liability that, obviously, might be dependent on reasonableness. Besides, some references are not available to their subjects.
In order to counter such a position, the employees should ask to include as a term of the contract a future reference and always be dubious when an application for work is rejected with seemingly no reason.However, there are some cases in which a prospective duty of care owed would be in conflict with higher duties. This is the case of (‘Desmond v Chief constable of Nottinghamshire police’, 2011 EWCA Civ 3); in the aforementioned case the plaintiff sought work as a teacher, therefore he requested an ECSR in which an unproved assault was named. Hence, Mister Desmond claimed a loss in court on behalf of not being hired as a teacher.
Nevertheless, the judge held that the statutory duty to protect vulnerable people owed by the chief of police was more important than the one owed to the plaintiff.In Sussex and Durham websites, the guidelines policies regarding reference letters for students share their core points; that means they are well aware of the facing risks, which is why they shall inform their professors and staff.In both of the websites is written that the university has a legal responsibility towards the students, therefore can be liable; the predominant aims in furnishing a reference are: to confirm facts and to provide opinions; it has been stated that the reference must be truthful, accurate; it has to be clearly understandable/understood when opinions are being given, again those as well ought to be true; telephone references are not advised and ambiguous or code language is to be avoided.
Also, it is written never to admit liability when challenged and refer as quickly as possible either to the Academic Secretary or to theAll those main points can be found as well in the UCL guidelines for referencing employees, there are only a few differences. Such as a disclaimer is included at the very end of the reference and a section is dedicated to criminal convictions and disciplinary sanctions (UCL Human Resources, 2017).Based on the lack of case law, specifically referring to students suing universities and professors writing reference letters and according to the almost identical wording of the guidelines of policies in place for employees of universities writing references for other employees one can conclude that there is no significant difference in the liability of the universities regarding references given to potential employers in respect of current students.
They owe a duty of care to students in the same way as an employer does to their employees.Moreover, in (‘McKie v Swindon College’, 2011 EWHC 469 (QB)) and its judgement, which is as follows:Candidate number: 180961 Module code: N1072 Module: Introduction to Business LawMindful that there is no direct authority specifically in point, accepting that this is a slightly different factual situation from Spring, an obviously different factual situation from White, nevertheless I am satisfied damage was foreseeable, the relationship was sufficiently proximate, it is fair, just and reasonable and there is a causal connection between the negligence in and about the sending of the email and the damage whereof the claimant complains (Denyer, 2001, point 54).Therefore, as long as the claim goes positively through the three-stage test, even if there is a slight dissimilarity comparing with older cases, the duty of care exists and the potential plaintiff is most likely to win.