Three cases heard in the past year in the High Court – George v Cannell  EWHC 2988 (QB), Parris v Ajayi  EWHC 285 (QB) and Kostakopolou v University of Warwick and others  EWHC 3454 (QB) – have raised some of the difficulties confronting claimants who wish to bring a defamation claim in relation to publications made to or by an employer. In this blog post, we look at some of the issues that may arise in claims that have their origins in the workplace.
Can I sue in defamation for something said about me in a job reference?
In theory yes, so long as the statement causes serious harm to your reputation or is likely to. However, whether the claim will succeed or not will also depend on whether any defences are available. It is highly likely that a reference provided to a prospective employer will be held to have occurred ‘on an occasion of qualified privilege’. Qualified privilege provides a defence to the publisher of a statement in circumstances where they had a legal, social or moral duty or interest to make the publication and where the publishee(s) (i.e. the person(s) hearing / reading the words complained of) has a corresponding interest in receiving it.
In Thour v The Royal Free Hampstead NHS Trust  EWHC 473 (QB), the Claimant, a former employee of the Defendant, sued the Defendant because it had provided a reference to a prospective employee which contained inaccurate information about the Claimant and which had caused him to miss out on a job offer. While acknowledging that the words complained of in the reference were defamatory of the Claimant, Mr Justice Tugendhat found that that the relationship between the referee and the employer was such that it met the requirements for qualified privilege.
Qualified privilege will defeat a claim for defamation unless it can be shown that the statement was made maliciously. In defamation law, malice has a technical meaning distinct from its everyday usage. To establish malice, a claimant must show that a defendant had a dominant improper motive in making the statement complained of. If, for example, it is proved that the person publishing defamatory matter had no positive belief in the truth of the statement, that is generally conclusive evidence of malice.
However, there’s a more fundamental issue that may arise in defamation claims brought over an employment reference. An action for defamation requires that the words complained of are particularised with precision. It’s not good enough to know that something defamatory about you has been said; the law of defamation requires that the words complained of are set out more or less exactly as they were written or spoken. Yet obtaining proof of the precise wording of an employment reference can be difficult. Under Schedule 2, Part 4, Paragraph 24 of the Data Protection Act 2018, any reference provided in confidence is exempt from the UK GDPR’s provisions on the right to be informed and the right of access. This means that if you make a data subject access request (DSAR) to an employer or prospective employer, they are not obliged to disclose the reference if it is confidential.
If, for one of the reasons outlined above, a defamation claim is a non-starter, all hope is not lost. Alternative causes of action to defamation may be available to you, including a claim for negligent misstatement, as confirmed in the case of McKie v Swindon College  EWHC 469 (QB) (and discussed on our blog here). A claim for negligent misstatement does not require the claimant to prove they have suffered serious harm to their reputation (or even been defamed) and no defence of qualified privilege applies. However, a claimant will need to prove that they have suffered consequential and foreseeable financial loss. A claimant may also be able to sue for inaccurate and/or unfair data processing under the UK GDPR.
I was dismissed from my job unfairly because defamatory findings were made about me during dismissal proceedings. Can I sue over the remarks in question?
Much as with suing over statements made in an employment reference, a Claimant faces significant difficulties suing over remarks made in the course of disciplinary proceedings. In Kostakopolou, the Claimant, a Professor of Law at the University of Warwick (the First Defendant), was dismissed from her job following disciplinary proceedings. In the course of these proceedings, defamatory complaints made against Professor Kostakopolou were caused to be republished as part of the investigations into her conduct. The Claimant argued that the proceedings had ‘resurfaced’ the defamatory complaints against her. In turn, the Claimant argued, the complaints had caused her to lose her job and had made it harder for her to secure future employment.
The High Court dismissed the Claimant’s argument on the grounds that it infringed the ‘Johnson exclusion zone’. The principle, established in the eponymous case Johnson v Unisys Ltd  UKHL 13, is that Parliament has provided an exclusive forum to deal with unfair dismissal – and any claim for loss arising as a consequence of the dismissal or by reason of that dismissal – in the form of specialist employment tribunals. As a consequence, it would be wrong to allow employees to bring what in effect amounts to a claim for unfair dismissal in a different arena (and in so doing, possibly circumvent the statutory cap on damages for unfair dismissal claims and recover legal costs).
In Edwards v Chesterfield Royal Hospital NHS Foundation Trust, Botham v Ministry of Defence  UKSC 58, the Supreme Court addressed, in passing, the scenario where a dismissal is unfair “because defamatory findings were made which damage the employee’s reputation and which, following dismissal, make it difficult for the employee to find future employment”. Lord Dyson was unequivocal that such a complaint “was intended by Parliament to be adjudicated on by the specialist employment tribunals.” This proved fatal to the Claimant’s case in Kostakopolou. Sir Andrew Nicol stressed that the courts must be vigilant “to observe the exclusive jurisdiction which has been conferred on the specialist Employment Tribunals.” To allow the claim would interfere with the matters properly confined to the employment tribunal. Richard Spearman QC, sitting as a Judge of the Queen’s Bench Division, applied similar reasoning in Parris v Ajayi. The Claimant had sued over statements published by her line manager to (at least) two other individuals connected by work. The statement made by the Claimant’s line manager had led to disciplinary proceedings, which resulted in the Claimant being dismissed from her employment. The High Court struck out parts of the claim after determining that reputational damage suffered by the Claimant was inextricably linked with her dismissal from her job. It followed that any financial loss suffered by the Claimant was therefore the result of her dismissal. The appropriate means of attaining compensation for that loss was through a claim for unfair dismissal, not a defamation claim.
In Kostakopolou the judge did acknowledge an exception where the cause of action (ie the publication of the defamatory words) accrued both before and independently of the dismissal [para 89]. In these circumstances, the Claimant may still have a viable claim for defamation.
As part of my employment contract, I agreed to submit to my employer’s disciplinary procedure. Does this prevent me from suing for defamation over any allegations raised during disciplinary proceedings?
In English law, natural justice requires that hearings are heard fairly and without bias. For natural justice to apply in disciplinary proceedings, evidence must be properly investigated. In Parris, Richard Spearman QC noted that for “allegations to be fairly and properly investigated they will inevitably need to be republished during the investigation. It is an implied term of any contract of employment that disciplinary processes will be conducted fairly.” It follows that if you agree to submit to a disciplinary regime as part of the terms of your employment, and then as part of any disciplinary proceedings defamatory statements about you are caused to be published or republished, you may be barred from bringing a defamation claim. In such circumstances, under the principle established in Friend v Civil Aviation Authority  IRLR 253 (‘Friend’’), you are deemed to have consented and/or granted leave and licence to the publication of the words complained of.
In Kostakopolou, the Court held that the Claimant had agreed, as part of her contract of employment, to submit herself to any disciplinary proceedings that were taken against her and that “inevitably, as part of the disciplinary process, it would be necessary for the allegations against her to be repeated and examined.”
Can I sue a colleague for a complaint made by them to my employer?
In Kostakopolou, the Claimant was attempting to sue over the allegations as repeated during disciplinary proceedings. The original statements, some of which were made by the Claimant’s colleagues and which the disciplinary proceedings caused to be republished, were time-barred (there is a one-year limitation period for defamation claims). Where limitation is not an issue, it may be possible to make a claim in relation to the original statements or, indeed, any complaint made by a colleague to an employer. Qualified privilege and the ‘serious harm’ requirement (especially where no action was taken) may be obstacles, but Singh v Weayou  EWHC 2102 (QB) (as discussed in our blog here) is one example of such a claim succeeding. However, in many instances co-workers will have limited assets, meaning that claims may be commercially unattractive (i.e. with relatively low prospects of damages/legal costs being recovered).
This post originally appeared on the Brett Wilson Media and Communications Law blog and is reproduced with permission and thanks