Critically evaluate, in relation to the common law duty of care, the Essay - 8

Critically evaluate, in relation to the common law duty of care, the liability of employers for references. How, if at all, does - Essay Example These include defamation, invasion of privacy, retaliation and negligent referral or breach of duty to warn (Flanders & Clegg, 2006 p.8). This paper critically evaluates the liability of employers for references, in relation to the common law duty of care. In addition, the paper examines how the liability of a university such as the University of Sussex deters regarding references given to potential employers in respect to current or former students. As mentioned earlier, there are four sources of liability arising from the provision of employment references to prospective employers. It is necessary to critically examine each one of them. Defamation arising from the common law In common law, defamation refer to any communication that tends to harm the reputation of another with the aim of lowering them in the estimation of the community or preventing third persons from associating with them. In determining whether a communication is defamatory or non-defamatory, the applicable test a t common law is how the subject of the communication interpreted the communication (Deakin & Morris, 2005 p. 56). There are compensatory and punitive damages available for a successful defamation claim. This depends on the level of malice towards the defamed party. Thus, punitive damages may be available in instances where the communication was made with express malice or actual malice. There are two major defenses to defamation claims: truth and privilege. Truth is an absolute defense to defamation claims. In order to establish truth defense, an employer must affirmatively prove that the information or statement given was truthful. In this case, the plaintiff is not necessarily required to prove that statement or information was false. The most commonly used defense is that of privilege. In this regard, it is argued that the employer has a particular privilege in making the defamatory statement. Thus, the defense of privilege provides that an employer is immune from liability from making defamatory communication. Further, there are two types of privilege: absolute privilege and conditional privilege. When an employer has an absolute privilege regarding their comment about former employees it implies that the employer has complete protection irrespective of the motive of communication. Thus, this privilege does not apply in employment reference situation (Wedderburn, 2002 p.19). More often than not, absolute privilege applies to communication made by judicial officers, legislators during legislative proceedings, as well as communication made by some government officials. On the other hand, conditional privilege provides protection based on the employer’s motivation. Thus, it applies to those people who have legitimate common interest with the recipient of the communication. For instance, a conditional privilege may be used to protect the employer when the information is given to business partners, fellow shareholders, fellow corporate officers and other professional interests. Based on this, employers have a duty of care to protect those they have legitimate common interest from risk that could be posed by employing such Privacy implication of employment information As a source of liability arising from the provision of employment references to prospective employers, privacy implication of employee information is meant to prevent the disclosure of information regarding their privacy. Through this, it is evident that employers have a duty of care to safeguard the private information regar