Student References - Some Guidelines
Curtin owes a general duty of care in preparing references for students. Staff must be aware, however, that there are also legal ramifications in the giving of references. These guidelines provide some principles of good practice in the giving or references. If followed, they will also assist in limiting the risks faced.
These guidelines are not intended to be taken as legal advice. In the event of concern or uncertainty in the giving of references, advice must be sought from Legal Services.
There are two potential sources of liability in respect of student references:
- the student who is the subject of the reference; and
- an employer who acts on reliance on the reference by employing the student.
The potential causes of action by which members of staff can incur liability are:
- The tort of deceit
- Misleading and deceptive conduct, contrary to s.10 of the Fair Trading Act 1987 (WA) and s.52 of the Trade Practices Act (Cwth)
Strategies to reduce liability include the following:
A reference should not be given in relation to an area outside the expertise of a staff member or in relation to a student as to whom he or she is not familiar.
For example, a lecturer in Accounting 1 should not give a reference for a student about to embark on a nursing career, where that reference relies on comment on the student's clinical abilities as a nurse. No matter how good the lecturer felt the student was in the Accounting classes this information is not relevant in providing the reference. Similarly, a student with whom the lecturer has had only minimal contact should not rely on the "staff room assessment" of that student.
No statement should be made about a student in relation to a profession unless the writer has professional working experience in that profession.
It is dangerous to offer an opinion on a situation where you are unfamiliar with the requirements of the position. For example, you should not provide a reference on a student's ability to undertake the job of a security officer if you have no experience of this profession.
All care should be taken to check the facts that are available.
Do not rely on your memory. Obtain the student's file and ensure that only facts that you have verified are included in the reference.
Do not drop veiled hints or use ambiguous language in the hope that the recipient will pick up on the clues you are sending.
A specific disclaimer should be included when information is used that is not supplied by the referee.
All reference should consist of facts rather than opinion, as much as possible.
As discussed above, the best references are those that are founded in fact rather than hearsay or opinion. On occasions however, you will be asked to express a view. If you don't really know, you must decline to offer a point of view. If you are however able to give an opinion clearly state that it is your view. "in my opinion....", "I believe that X..."
Written references, where possible, should be shown and discussed with students.
If a negative reference is to be given as part of a reference, the student must be told in advance and be given an opportunity to withdraw the request.
By discussion with the student what you feel you will be required to disclose, you provide the student with the opportunity to either address the issues you may be obliged to reveal, or to remove you are a referee. If there is going to be a disagreement over a reference it is far better to have the matter aired before the reference is provided than to receive a defamation suit after the reference was provided.
Oral reference should be avoided wherever possible. If an oral reference has to be given, a comprehensive file note of the conversation should be made.
Verbal references can be misinterpreted, misheard, misquoted or wrongly transcribed. Comments can be taken out of context. Referees are likely to be less careful in use of language etc.
Sometimes however it is unavoidable (where it is in the student's best interests and it is considered to be essential to provide the reference immediately). In these cases the statement should be limited to the facts and followed up in writing (by fax) and a copy of the written evidence of the conversation placed on the student's file.
If in doubt, seek assistance from the Student and Staff Services or Legal Services.
All references should be placed on the departmental student file, including a file note of all oral references.
Any reference provided by Curtin should be on file. The Head of School may wish to ensure that only nominated staff provide references, or that all references provided by Curtin (i.e. on letterhead) are passed via his or her office to ensure that they meet these guidelines.
Staff may provide personal references, but these should not be on Curtin letterhead.
If challenged about a reference do not accept liability, but contact Legal Services immediately.