“I want to sue him/her for defamation.”
I hear this request frequently when employees who are the subject of allegations in the workplace come to me for advice. They are incensed that a complaint or allegation has been made against them.
How would you feel if a colleague accuses you of bullying or harassment or sexual harassment or some other undesirable conduct in the workplace. Or perhaps a manager or supervisor accuses you of misconduct or worse.
An investigation will follow, and the outcome of this investigation may culminate with a disciplinary process against you.
Can you sue for statements made during a workplace investigation or disciplinary?
Defamation in a workplace disciplinary
Let’s take a look at the issues.
Everyone has the right to protect their good name and reputation. This is a personal constitutional right.
There are several defences to a claim for defamation, however, including privilege, qualified privilege, fair comment, truth, and so on.
In the employment context it is accepted that investigations in the workplace will attract qualified privilege. This means that statements made during an investigation into misconduct are almost certainly privileged. This means they cannot be relied upon to commence legal proceedings for defamation, or any other cause of action.
Employers have a duty to investigate, and encourage complaints, about harassment, sexual harassment, bullying in fulfilling their duty to provide a safe, discrimination free workplace for all employees.
Moreover, those involved in a workplace investigation will be encouraged to treat all statements as a matter of confidentiality.
Once the parties involved in such an investigation observe confidentiality it is extremely unlikely that a successful defamation claim would arise, and which would be capable of overthrowing the qualified privilege protection.
Qualified privilege arises in these types of investigations because employees have a duty to make statements and share what they know for the investigation to be carried out properly.
Thus, there are a couple of requirements for qualified privilege to apply:
- The person making the statement has a duty to share information with the investigator
- The person conducting the investigation has a duty to receive the information
The protection of qualified privilege will be lost, however, if the statement complained of is not honestly made or is made maliciously.
The bottom line is there must be a duty to make the statement and there must be a legitimate interest on the part of the maker and receiver of the statement. This is the situation in an employment relationship.
Qualified privilege has a statutory basis in section 18 of the Defamation Act 2009 as follows:
18.— (1) Subject to section 17 , it shall be a defence to a defamation action for the defendant to prove that the statement in respect of which the action was brought would, if it had been made immediately before the commencement of this section, have been considered under the law (other than the Act of 1961) in force immediately before such commencement as having been made on an occasion of qualified privilege.
(2) Without prejudice to the generality of subsection (1), it shall, subject to section 19 , be a defence to a defamation action for the defendant to prove that—
( a) the statement was published to a person or persons who—
(i) had a duty to receive, or interest in receiving, the information contained in the statement, or
(ii) the defendant believed upon reasonable grounds that the said person or persons had such a duty or interest, and
( b) the defendant had a corresponding duty to communicate, or interest in communicating, the information to such person or persons.
(3) Without prejudice to the generality of subsection (1), it shall be a defence to a defamation action for the defendant to prove that the statement to which the action relates is—
( a) a statement to which Part 1 of Schedule 1 applies,
( b) contained in a report, copy, extract or summary referred to in that Part, or
( c) contained in a determination referred to in that Part.
(4) Without prejudice to the generality of subsection (1), it shall be a defence to a defamation action for the defendant to prove that the statement to which the action relates is contained in a report, copy or summary referred to in Part 2 of Schedule 1 , unless it is proved that the defendant was requested by the plaintiff to publish in the same medium of communication in which he or she published the statement concerned, a reasonable statement by way of explanation or a contradiction, and has refused or failed to do so or has done so in a manner that is not adequate or reasonable having regard to all of the circumstances.
(5) Nothing in subsection (3) shall be construed as—
( a) protecting the publication of any statement the publication of which is prohibited by law, or of any statement that is not of public concern and the publication of which is not for the public benefit, or
( b) limiting or abridging any privilege subsisting apart from subsection (3).
(6) A defence under this section shall be known, and is referred to in this Act, as the “ defence of qualified privilege ”.
(7) In this section—
“duty” means a legal, moral or social duty;
“interest” means a legal, moral or social interest.
A further defence to a claim of defamation is truth-that is, the statement made is true even though the content may reflect poorly on the person about whom the statement is made.
An employer has a duty of care to all employees, along with a duty to provide a safe place of work. This will entail carrying out an investigation when a complaint is made by one employee against another.
All employees have a duty to assist with such an investigation for it is seen as a good thing in society generally, and in the workplace, that persons can go about their work free from bullying, harassment, sexual harassment, or inappropriate conduct.
Thus, all statements made in the investigation and disciplinary procedure should be seen in this context and will almost certainly enjoy the protection of qualified privilege.
This means you cannot sue for defamation in such situations.