According Merton London Borough Council [1978] AC 728. The

According to Horsey and Rackley, the concept of common law duty of care is used to test and establish the fact in which “the defendant must not only be “at fault” but also in a relationship to the claimant where their careless carries legal consequences.” (Horsey and Rackley, 2017). In the case of this essay question, the duty of care would belong to the University of Sussex seeing that they have an established relationship with students and former students, also the responsibility to write references, which confirms their liability. In terms of law, a liability can be defined as when the defendant is legally responsible and accountable in law thus meaning that they are legally obligated to answer to any breach of contract with the claimant; the claimant is the one who wants and has to prove the liability of the defendant. This essay will critically evaluate the liability of employers for references and it will also discuss how universities do have the liability to write references for students and it will contrast to the liability of employers. To establish the liability of employers for references, the three-stage test can be carried out to prove the duty of care in which the defendant, in this case employers, have towards the claimant, former employees. In law, the three stage test derived from the two-stage test that was established in the case of Anns v Merton London Borough Council 1978 AC 728. The two-stage test would test for two requirements to determine if the defendant indeed had a duty of care towards the claimant; these two requirements were firstly the fact that the claimant had to fall under the category of people who suffered foreseeable risk due to the defendants action and secondly consideration of reason that would indicate no duty of care. However the three-stage test which was first used in the case of Caparo Industries Plc V Dickman 1990 UKHL 2 differs from the two-stage test because it tests for three requirements. These three requirements are “the harm and loss must be foreseeable, there must be proximity between the claimant and the defendant and it must be “fair, just and reasonable” to impose a duty of care.”  (Jones, 2017). The Caparo three-stage test can be used to determine the liability of employers for references. Firstly the harm and loss that is foreseeable in this case for  employers not writing references for former employees is that this action could limit the claimant when attempting to apply for jobs that require a prior professional reference; the harm and loss clearly evident in this case could be unemployment. The proof of harm and loss in this case can be closely linked with the outcome of the Spring V Guardian Assurance Plc 1994 UKHL 7 case in which the former employee was denied his new job due to a poorly written reference from his former employer.  Secondly, it is evident that there is a proximity between the claimant and defendant which is proven to be a professional relationship with common expectations from both parties, in this case the expectation from the claimant would be to be able to acquire a reference for a new job. Thirdly it is fair, just and reasonable to establish this duty of care upon employers because it is fairly easy for them to find new employees in comparison to the difficulty that their former employees may encounter when seeking for a new job, specially without a reference. Therefore according to Caparo three stage test it can be established that the employers do have the liability to write references for their employees, which would also be applicable for universities and their students.However there are issues that must be taken into consideration when carrying out the three stage test. The issues are outlined by the Coulthard V Neville Russell (A Firm) 1998 1 BCLC 143 case, which states, “In a state of transition or development as the HOL pointed out …. this is an area of law which is developing pragmatically and incrementally. It is pre-eminently an area in which the legal result is sensitive to the facts.”  (Coulthard V Neville Russell (A Firm) 1998). Therefore due to these issues, the three-stage test cannot be fully reliable and in court judges may use their personal discretion of the facts to establish if the defendant is indeed entitled of the duty of care. In this case in particular it could also be argued that the claim does not pass through the third stage of the test thus meaning that it would not be “fair, just and reasonable” for employers (or universities) to have the responsibility to write references in the instance that an employee or a student has committed a breach of contract.Furthermore, when contrasting the liability of an university with the liability of an employer when it comes to writing references, differences can clearly be distinguished. The relationship between an student and the university is different than the relationship between an employer and an employee. The perspective that the university can give through a reference is based on someone’s academic performance as well as their personality and qualities thus meaning that the university does not have a full insight on how students would perform as employees. This reflects how an universities’ liability for writing a reference cannot be fully accountable to the outcome that is if the student acquires or not the job, this being due to the fact that there is limited insight for the university to determine as students professional performance. Employers on the other hand are capable to critically evaluate how a former employee performs professionally.Taking into consideration all the facts discussed in this essay, it can be concluded that with basis on Caparo three-stage test, it is likely that by the law a judge can impose the common law duty of care upon employers for being liable to write references due specially to possible loss of job opportunities that the claimant my face as seen in the case of Spring V Guardian Assurance. It is also clear that in the case of universities writing references for students, the institution cannot be held as liable as employers due to the fact of their limited insight as to how students would perform in a professional environment rather than in an educational environment. Bibliography:Anns v Merton London Borough Council 1978 AC 728 Caparo Industries Plc V Dickman 1990 UKHL 2Coulthard V Neville Russell (A Firm) 1998 1 BCLC 143Horsey, K. and Rackley, E. (2017). Tort law. 5th ed. Oxford: Oxford University Press, pp.57-76.Jones, L. (2017). Introduction to Business Law. 4th ed. Oxford: Oxford University Press, (2017). Caparo v Dickman 1990 UKHL 2. online Available at: Accessed 14 Dec. 2017.Spring V Guardian Assurance Plc 1994 UKHL 7


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