Everything You Need to Know About Avoiding Defamation in the Workplace

By Matt Nicholls

October 19 2020 - Defamation in the workplace is on the rise in the UK, which means it's more important than ever to know how to avoid it at your company. Discover more, here...

Defamation is a little-understood section of the law that employers often overlook. Up until recently, defamation cases amongst businesses and employees were quite rare, but they are now on the rise in the UK.

If you're already undergoing a defamation case, or you're aware of someone in your company planning to file a suit, speak to a defamation solicitor to find out what your rights are. Otherwise, it's important to avoid these sorts of issues before they happen. So, to do so, we need to educate ourselves on the topic a little more.

In this post, we're going to outline what defamation is and tell you why cases have risen so much in recent years. We'll then be sharing some advice on how to avoid it at your company, so stick around for more...

What is Defamation?

Defamation is an untrue verbal or written expression about a person or company that causes them harm. For an individual, this harm tends to be reputational, and for a company the harm has to lead to financial loss, or it isn't considered defamatory. The two main forms of defamation are:

• Libel: a permanent form, such as written or video.
• Slander: a temporary form such as the spoken word.

In both libel and slander cases, the claimant needs to be clearly identified either directly or by reference. Because slander is a temporary form of defamation, some form of proof has to be given that the defamatory words were uttered, which can be quite tricky.

Also, for language of any kind to be considered defamatory, the precise meaning of the words has to be taken into account. For example, vulgar insults aren't usually defamatory, but holding the subject up for ridicule and mockery by others can be considered defamatory.

Some statements are defamatory in their natural meaning, such as accusations of illegality or immorality. Others have more inferred meanings, where the reader has knowledge of special facts that change the meaning of the statement in their minds.

Basically, the test of meaning is based on what an objective member of the public would understand the words to mean.

Why Have Workplace Defamation Cases Been on the Rise?

As you can see from the above section, defamation law is hardly cut and dry, primarily because the cases were few and far between and tended to be complex in nature.

Up until 2016, most defamation cases in the UK were limited to publications defaming individuals and companies. However, in the last 4 years, defamation lawsuits have tripled from 112 to 323.

Many of the law firms dealing with the influx of defamation cases have blamed social media for the rise. They say that people are posting online without realising the potential consequences of what they post.

Laura Wilkinson, an associate solicitor, said "Everyone with a social media account is now effectively a publisher, albeit without the kind of legal checks and controls which are integral to more traditional print and broadcast outlets."

"That means there is no filter to prevent defamatory comment making its way before a global audience in seconds, with all of the complications and problems that can create."

Redundancies

The increased use of social media is only one piece of the puzzle. COVID-19 has forced a lot of employers to make staff members redundant, and these employees are understandably unhappy about it.

There are examples of disgruntled redundant staff taking to social media and making derogatory comments about their former employer. Even if the employer had genuine reasons for the redundancy, and has followed the process carefully, these comments are still made.

Of course, just posting one comment online expressing their genuine upset at an employer for making them redundant is unlikely to be classed as defamation. But, in cases where the employee persists, or their comments are published widely, the employer might feel that the reputation of their business is being tarnished, and take legal action.

How to Avoid Workplace Defamation at Your Company

In this next section, we will provide some advice for both employers and employees on how to avoid a defamation suit in the workplace. This way, everyone can be sure they act accordingly at work. Our advice includes:

Defamation Advice for Employers

To avoid being sued for defamation by an employee, here are a few tips you can use:

• Implement a neutral reference policy: if you're asked to give a reference for a former employee, tell them that company policy only allows you to confirm that employees position and dates of employment. If you share any negative details about the employee and it costs them the job, it could be considered defamation.
• Don't share details of an employee's departure: telling your co-workers about an employee's departure should be kept to a minimum. Only share details on a need-to-know basis because anything negative you say about them, particularly if you fired them for a breach of conduct, could be considered defamation.
• Implement an anti-gossip policy: monitor the workplace to stop employees from spreading rumours about each other, because there's always a chance it could lead to a defamation case.
• Train your managers not to be malicious: if you have managers working underneath you, make sure they're thoughtful and objective about their communications, and not complaining or venting about employees.

If you can follow these tips, there should be very little chance of a defamation lawsuit happening in your workplace.

Defamation Advice for Employees

Now it's time to look at some defamation advice for employees:

• Watch what you're saying: as we said at the start of this post, you are not judged on what you say expressly but on what the average person thinks it means. Take into account what an ordinary, reasonable person might think when they read what you've written about a co-worker or employer on social media.
• Only say what you can prove: truth is usually the best defence in a defamation case. When you write something that could be harmful to a company or person, think about what evidence you could show in a courtroom and how convincing it would be.
• Say what you don't know: if you make sure to say something is true when you have evidence, you should also say what you don't know to be true. For example, 'I have no proof of this, but I think...' is a good way to express opinion and make it clear to an average reader.
• Don't allege criminality or purposeful lying: if you're accusing an employer or employee of a crime, or of lying on purpose, you need very strong evidence, or you could easily be sued for defamation. You can discuss someone's conduct, i.e. say what they did, but it's harder to prove intent and what's going on in someone's mind.
• Think about who you might be defaming: some people are much more likely to sue you for defamation that others. If you're going to insult a colleague in an open forum, make sure they're not the kind of person to drag you through a lawsuit.

Social media can feel like a free for all, where people make false claims all day long. That said, there are laws in place for a reason. So, if you make these claims against an employer or co-worker, you could be sued for defamation.

Further to that, lots of defamation cases are based on how many people saw what you wrote. With retweeting, sharing and upvoting making it easy for any of your posts to reach a wide audience, you could easily defame someone without distributing the message yourself.

What is the Future of Defamation?

In this post, we've discussed what defamation is, and why it's suddenly tripled over the last 4 or 5 years. We've also talked about what you can do as either an employee or employer to avoid defamation in the workplace.

The future of defamation seems like it might be on social media. Once an area of law restricted to the mainstream media, and other publishers who were able to distribute their opinions to a wide audience, it is now being used on average people.

The best way to avoid being a defendant in a defamation case is to act ethically. Try not to vent your frustrations on the internet or in the workplace and save your grievances for your close family and friends.

Thank you for reading this post, and good luck avoiding defamation in your workplace.

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