Defamation Claims and Employment

I've been reading Kentucky Employment Law Notes for some time.  I've finally added it to the "Blogs I Follow" to the right.  This blog bills itself out as discussing "items of interest to employment lawyers and H.R. professionals in Kentucky."  In reality, people outside of Kentucky would benefit from reading this blog. 

David Hoskins writes Defamation claim against H.R. manager dismissed that any human resources professional should read with care.  The fact is that defamation claims are not unheard of in employment law.  As David notes, this case relates to a claim by an employee that he had been defamed by an HR manager.  The employee suggested that the HR manager's explanation for the termination was defamatory.  That explanation was given to the employee during a closed door meeting in the presence of a supervisor. 

The employer brought a motion to dismiss the claim and argued that the allegedly defamatory words were protected by a "qualified privilege" relating to conduct of employees.  David succinctly summarizes the lessons learned:

(1) Conduct termination meetings in a closed door environment. (2) If a witness is to be present at the termination meeting, select a witness with some legitimate, business need to know the reasons for termination and/or to be present at the meeting. (3) Be able to articulate concrete facts that support the allegations made against the employee. (4) Be able to articulate the reasonable steps the Company took to investigate the allegations against the employee, and in particular, be able to state that the Company investigated sources that would have refuted the allegations against the employee, i.e. be able to prove the Company did not conduct a one-sided investigation.

The circumstances under which an employee can allege defamation are seemingly limitless.  A couple of years ago I wrote about Employee References - Should You? that reviewed a couple of Canadian cases.  In Miller v. Bank of Nova Scotia the Court dismissed the claim by an employee that she had been defamed by comments made by the employer during a reference check.  In Litster v. B.C. Ferry Corporation the Court dismissed a claim alleging that the employee had been defamed by her supervisor when he wrote a termination letter and distributed it to five (5) individuals.  The "qualified privilege" defence factors into many of these cases. 

But, as I said back in 2004:

There is no doubt that, in an appropriate case, saying too much can land the employer in hot water. The difficulty is that not saying enough can be equally problematic for an employer. Take a look at Barakett v. Levesque Beaubien Geoffrion Inc. (affirmed by the Nova Scotia Court of Appeal here (leave to appeal to the S.C.C. refused July 11, 2002). In this case the Court increased the period of reasonable notice because of the employers failure to provide a reference letter which adversely affected the employees ability to find other employment.

The point is simply that a healthy dose of caution will serve you well here.