How, if at all, does the liability of a university differ regarding references given to potential employers in respect of current students free essay sample

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. Employers have a certain degree of liability when making statements in a former employee’s reference. Employees and employers have a duty of care, to provide valid descriptions of an individual’s quality and potential as a former employee, and thus a reasonable reference is, truthful and fair. It is up to employers to thus avoid inaccurate references that lead to negligent misstatements or misinterpretations on their part. It is known that in tort, liability arises by fault of a particular party or defendant. In other words, the modern causation of negligence is formed by evidence that coincide with people or companies that had a certain duty to provide civil obligations but their actions lead to a foreseeability of damage. We will write a custom essay sample on How, if at all, does the liability of a university differ regarding references given to potential employers in respect of current students or any similar topic specifically for you Do Not WasteYour Time HIRE WRITER Only 13.90 / page To expand on this general area of tort law and compare it to that of a university and former student, cases have to be mentioned where the establishments of these rules were made to defend breaches in duty of care. Negligence as law was first conceptualized in Donoghue v Stevenson1. The claimant’s case was successful against the manufacturer (defendant) of the ginger beer and went on to institute â€Å"the modern law of negligence and established the neighbor test†. 2 The case is relevant as it expanded the idea that tort of negligence could arise in other situations. Lord Atkin stated what is known as his ‘neighbor speech’, where in order for the defendant to have duty of care for a claimant, â€Å"there should exist between the party owing the duty and the party to whom it is owed, a relationship characterized by the law as one of proximity or neighborhood†. 3 Similarly, the case of Hedley Byrne Co LTD v Heller and Partners LTD4, contributed to the edifice of the principle of proximity, where duty of care can still be due under evidence of negligent misstatement. It was decided that if the â€Å"representor gave information-or advice which was negligent he would be liable for any pecuniary or personal damage-caused†5. However the appeal was dismissed due to the fact that with â€Å"the absence of a contract or fiduciary relationship† the defendant that used a disclaimer would owe no duty of care. 6 The case was significant in that claims on negligent misstatement could work if; there is a special affiliation among parties, the information provided by a party has a voluntary assumed risk, the plaintiff has to deem the information reliable, and finally the reliability of the information must be applicable. In Caparo Industries plc v Dickman7, it was determined that courts had to test the duty by â€Å"whether the damage was reasonably foreseeable, whether there was a relationship of proximity between claimant and defendant, and whether it is just and reasonable to impose a duty. †8 If so, then a duty of care could arise. Spring v Guardian Assurance plc9 is key for this discussion. The claimant â€Å"won the case on grounds of the defendant’s negligence†. 10 The defendant owed the claimant a duty of care in terms of providing a reference. However, there was a partial split in decision between the judges on the defendant’s rejection of liability towards the reference. The Hedley Byrne fundamentals of proximity argued the case focused on the fact that the company (defendant) took over the claimants company, never technically employed him. On the other hand, based on the Caparo criteria, the foreseeability of the causation of negative references would damage the claimant with economic loss by impeding his chance to find employment. The primary action was taken on grounds that the reference was demeaning, the lack of concrete facts resulted in only a claim on negligent misstatement. However, the contract between the defendant and claimant was not breached because they didn’t hire the claimant. However, because the defendant was narrowly deemed as a ‘neighbor’ to the claimant who restricted the former employee from being employed, the claimant won the case and was granted damages from the defendant for negligent misstatement. When it comes to comparing students with employees, it’s hard to argue that they play the same role in their respective business model. A student is technically a consumer in a university, but a professor still acts as an employer figure giving assignments: determining a student’s future employment and career with references. It is arguable that the employment analogy is similar, there is less evidence to suggest duty of care by the professor who could potentially provide a reference that misleads a failing student to seem like a prodigy or a hard working student that simply doesn’t get along with a professor or causes problems in class. Either way, it’s a grey and uncertain area that can be further analyzed with other cases. To further argue the scope of where a professor would owe a duty of care to a student in terms of references, in Bartholomew v Hackney LBC11 the defendant gave a negative reference of the claimant to a prospective employer, which led to a withdrawal of his employment. This case showed that if a reference, although negative, was not â€Å"unfair, inaccurate and false† then there would be no liability for the defendant. 12 Furthermore in Cox v Sun Alliance Life LTD13 the defendant wrote a reference that suggested unfair and exaggerated claims for â€Å"serious matters of dishonesty and that the matters had been thoroughly investigated†14. However, the defendant â€Å"failed to take reasonable care to be fair or accurate† in the reference, because the claimant had never been charged with dishonesty or scrutinized. 15 In terms of these cases, in comparison to a professor with a student, it is arguable that the professor has the duty to provide a fair, accurate, and prospective reference for a student. But shouldn’t be liable for a negative reference if its fair, and agreed to some extent with the former student to specify on any negative statements. I agree that a student has a duty to perform at a persistent level. It is beneficial for employers to demand a fair, accurate and honest reference, even if it shines negatively on the student. Yet the professor, like any employer, under common law owes a duty of care that should be provided to a prospective employee that demonstrates they’re potential and quality for any  employer, avoiding negligent misstatements. According to relevant case law, it is clear that a professor and student have a strong sense of proximity and the professor’s reference statements could potentially be causation of damages for a student who is looking for employment. Therefore, I believe there is a duty of care for universities to consider a fair and just reference for students like that of an employer to a former employee.