Defamation in the workplace 

Defamation in the workplace is a serious issue that can affect both individual employees and the company itself. It can impact career prospects and cause reputational damage, which can have very serious implications for a business that are hard to mitigate.

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What forms can workplace defamation take?

There are different forms of defamation that can occur in the workplace.

Libel

Libel is the publication of a statement in a permanent and lasting form, such as:

• In writing including posts on social media
• Broadcasts

Slander

Slander is more transient and covers methods such as:

• Speech
• Gestures
• Conduct

It can be harder to prove slander without any evidence that the statement was made. There may be a recording of what was said, but if that is not available, then claimants alleging workplace defamation could rely on witness statements from colleagues to evidence what was said. Slander also requires proof of special damage (financial loss) as well as serious harm, unless certain exemptions apply.

What are the defences to workplace defamation?

There are a range of possible defences to defamation that could be applicable here, including:

• Truth
• Honest opinion
• Privilege
• Public interest

The defendant can also offer to make amends, and if the offer is accepted, the claimant may not proceed with their defamation claim. If the offer is rejected, it may still provide a defence limiting the defendant’s liability.

An offer to make amends is an offer to apologise, correct the defamatory statement, and provide compensation to the claimant.

What does defamation in the workplace look like?

Defamation in the workplace may take various forms and understanding this as an employer can help you prevent liability or losses associated with a defamation claim.

Defamation by an employer against an employee

An employee may allege that they have been defamed by their employer, for example, if a baseless statement was made in situations involving disciplinary action, a performance review, or termination.

Defamation by an employee against their employer

An employee or ex-employee can make defamatory statements about their employer or former employer, significantly affecting the company’s reputation and even risk financial loss.

Defamation between employees

If inter-personal disputes arise between employees, false statements made about a colleague could be defamatory, for example, if a rumour is spread which damages the claimant’s reputation or career.

Vicarious liability

If an employee publishes a defamatory statement about a third party, whilst acting in their capacity as an employee of the company, the employer may be held vicariously liable. In order for the employer to be liable, there must be sufficient connection between the employee’s defamation and the duties of their employment.

For example, if any employee made a defamatory statement about a competitor to convince a client to request their services instead, the employer may be liable.

In contrast, it’s unlikely that an employer would be held liable for a defamatory statement made by one of their employees outside of work, concerning a person in the employee’s personal life – such as writing a defamatory statement about their neighbour on their personal social media.  

What is the effect of workplace defamation?

There is a wide range of effects of workplace defamation:

• Defamatory statements made against a particular employee can impact their prospects of promotion or bonuses where the defamatory statement casts aspersions on their professionalism or conduct.
• It can damage professional relationships within the team.
• If the defamatory statement is about the company itself then this can have a significant financial and reputational effect.

What is the effect of social media on workplace defamation?

There has been a massive increase in defamation claims, including in the workplace, and one of the reasons cited for this prevalence of social media use. Often people do not realise the implications of their posts and the potential consequences. Social media has effectively turned individuals into publishers without them realising. Even private posts can be shared by followers, giving them a very wide audience in a matter of moments. Comments made on social media are done so without the usual checks and filters that mean the damage can be more widespread since it can reach a global audience within seconds. People are often more likely to post in the heat of the moment without thinking.

How can workplace defamation be prevented?

Ensuring good workplace etiquette is the first step in ensuring that employees or the company itself do not suffer from the implications of workplace defamation. There are various practical steps that can assist in making sure that everyone is aware of their responsibilities and to prevent employees from making defamatory statements.

Educate the workforce

Make sure that everyone understands how serious defamatory statements are, even if made as a passing comment or as a joke. Your expectations of employee conduct should be part of your induction process as well as your HR handbook.

Discourage any form of gossip within the workplace and make it clear that this will not be tolerated. By encouraging a professional environment, employees will have a greater understanding in relation to what is and what is not accepted.

Similarly make sure staff understand the implications of social media use. This again should be covered as part of your HR manual and should explain what will happen to employees that post defamatory statements on their social media pages.

Keep communication lines open

If employees feel they can raise complaints or concerns with their line manager, HR or senior leadership, they are less likely to raise complaints inappropriately. Make sure that everyone has regular line management meetings and understands how to raise any concerns, including your policies on complaints and whistleblowing. Scrutinise employment contracts to ensure they are transparent but also detailed enough to cover scenarios such as defamation and the relevant implications.

Where complaints arise, make sure that they are handled efficiently and show the employee that you are listening to their concerns. If an employee raises a complaint of defamation make sure that you take it seriously- the implications can be far reaching for all involved and so it is imperative to get expert legal advice.

Effective GDPR measures must be in place

All staff should have regular GDPR training so that they understand the importance of good data handling. Make sure that any breaches of GDPR are duly reported and logged. Getting into good habits in relation business data again sets the tone in relation to how employees are expected to act and prevent information falling into the wrong hands.

Dealing with ex-employees

These days it is unusual for an individual to remain employed by the same company for life. Disgruntled ex-employees can make defamatory statements about their previous employers that can be very damaging.

Also remember that ex-employees can bring a claim of defamation in relation to references provided by a business when they apply for another job so always try and keep your references neutral. Similarly keep any details about an employee’s departure to a minimum, particularly where the departure was not on good terms.