Critically evaluate, in relation to the common law duty of care, the Essay - 7

Critically evaluate, in relation to the common law duty of care, the liability of employers for references. How, if at all, doe - Essay Example Selective provision of reference for former employees could contravene the Equality Act 2010 (the Act) if such an exercise amounts to discrimination. In cases where an employer does not offer a reference, it is bound by a duty of care to the former employee. The duty requires the former employer to exercise reasonable care in the processing of accurate, truthful, clear, and fair references (Sam, 2004). Employers also have a duty to fellow employer. In executing this duty, Austen-Baker (2011) notes that a former employer may offer a detailed or a brief reference; however, the content must contain all the necessary information that leaves no room for speculation. Any employer who fails on this may be liable for negligent misrepresentation of facts (Gergen, 2013). Such an employer may also be vulnerable to tort of deceit charges. Detrimental treatment The Act provides important safeguards against victimisation of an individual who files a case against a former employer or has volunteere d evidence in trial under the statute or filed a claim for violation of the statute (Elder, and Gerdes, 2007). Before the Act was enacted, the English common law had ensured that immunity against whistle-blowers and victims was in place. For instance, the House of Lords verdict in the case of Rhys-Harper v Relaxation Group plc [2003] IRLR 484, directed that employees should be cushioned against victimisation such as an employer’s denial of reference in connection to an earlier engagement. Marson (2013) has pointed out that Section 108 of the statute precisely leaves out issues to do with detrimental treatment where an employer-employee relationship has ended. Even though the motive behind Parliament’s decision to leave out victimisation claims after the end of an employment relationship could be seen as an error, the alleged gap is consistent with placing no duty on an employer to give reference to a former employee. Authorities Various examples of the UK case law have not been consistent on victimization of former employees. In the case of Ono v Akwiku (2012), the Employment Appeal Tribunal (EAT) issued a verdict to the effect that it is legal for ex-employees to file for a claim for detrimental treatment under the Equality Act 2010. The ruling may have been informed by the fact that some employees are victims of unfair dismissal and subsequent victimization. Regardless of the reasoning, the EAT verdict contradicts the outcomes of the case of Rowstock Ltd & another v Jessemey (2013). In the latter case, the EAT held that Mr Rowstock could not be remedied for victimisation, following his receipt of a bad reference from his ex-employer. The claimant had alleged age discrimination as victimisation (Marson, 2013). The EAT's ruling was informed by the literal rule of  §108 of the Act, which could not be construed to arrive at a different meaning (Gergen, 2013). In the case of Ono v Atwiku, the petitioner, a domestic employee filed for a claim again st her ex-employers citing detrimental treatment which happened after the engagement between the two parties had ended. In its decision, as Marson (2013) states, the EAT sought to correct the ruling in Jessemey, by arguing that it would not be proper to bring claims of victimization against the former employer after they had gone separate ways. Legal absurdity In spite of the correction of the ruling on the former case