The topic of defamation is one which has the propensity to strike feat into the hearts of even hardened employers and HR professional alike.
But what actually constitutes defamation? And when can an employee retaliate to such claims? We spoke to employment lawyer Ryan Watkins, of Whitten and Lublin, who talked us through the controversial topic.
“For defamation, the legal test for determining it is if words were used which could lower a person’s reputation in the eyes of a reasonable person,” explained Watkins. There has to be comments that are negative towards someone or some organization.”
There are two types of defamation; the written form, which is called libel, and the oral form of slander, Watkins tells us.
“The words have to specifically reference the person in question, i.e. the person’s who is being slandered,” continued Watkins. “And the words have to be published or communicated to another person to be able to be considered defamation.”
So, when exactly can an employer sue an employee for defamation?
“The best example would be after an employee’s employment has been terminated that employee goes around saying negative things about their former employer,” added Watkins. “They might be claiming that the employer didn’t treat their employees well, or they participated in criminal activities etc. Basically, any negative commentary focused on the employer.”
From a defense perspective, Watkins tells us, an employee has many options to fall back on.
“The most prominent one would be that the statements they made are actually true. So, if the employee said, for example, ‘I was treated badly by my employer because of X’, and that turns out to be true, if an employer tries to then sue said employee the defamation claim cannot stand.
“Another defense is the ‘Absolute Privilege’. This comes into play in a Court setting, if an employee says something which could be considered defamation it wouldn’t really stand. Courts want people to testify their beliefs truthfully and honestly. As to not hinder any hearings, there’s a defined privilege that comes with this scenario.”
“The last defence is called a ‘Qualified Privilege’. If the employee has an interest in making the statements in question, and the employer had a vested interested in hearing them – if there was no ill will behind it then that would dispel the defamation claims.”
Lastly, how an employer and an employee can protect themselves from the threat of defamation, Well, it’s all about being mindful and respectful.
“Try to avoid general statements,” added Watkins. “Unless you know for certain what you’re saying is true, don’t try to puff it up.
“Secondly, if you don’t have anything nice to say don’t say it at all. If you’re not saying anything negative, then you won’t get into trouble.
“If an employee is asked by somebody to give their opinion on their employer, or an employer is asked to give a refence on a departing employee, if there’s truly nothing nice to say, just don’t say anything at all.”