Employment references and the law of defamation
Most people associate the law of defamation with legal actions taken by individuals to defend negative things said about their character in newspaper articles or television programmes. High profile examples include Albert Reynolds’ case against The Sunday Times and Proinsias de Rossa’s case against Eamon Dunphy and The Sunday Independent.
Not many people know that it is also possible for employers to commit the tort of defamation when writing a reference for a former employee. In order for a statement about a past employee to be libellous, it must lower the employee in the eyes of right thinking members of society or hold them up to hatred, ridicule or contempt. If the statement is made in the course of a telephone conversation, the tort of slander has been committed.
Thus, where an employer writes a reference for a prospective new employer on behalf of a former employee, the employer may well leave himself open to an action in defamation if the reference contains statements which may be considered defamatory. A past employer does, however, have a duty of care to the prospective employer when providing a reference. It follows that if a past employer provides a glowing reference for an ex-employee whom they are delighted to be rid of that this may expose them to a case of negligent misrepresentation if the new employer suffers reasonably foreseeable damage as a consequence of reliance on the inaccurate reference!
A former employer who provides a defamatory reference may use the defence of justification. If the content of the defamatory statement can be shown to be true, the former employer is off the hook.
The qualified privilege defence can be used where it can be shown that the person making the statement had an interest in making it and that the person to whom it is made had a corresponding interest in receiving it. It is well established that a present or ex-employer and a would-be employer have corresponding interests with regard to references and therefore the defence of qualified privilege is an obvious one.
The only circumstance in which a defence of qualified privilege will fail (and a statement made in circumstances of qualified privilege will not be libellous or slanderous even if untrue), is where it can be shown that the maker of the statement is motivated by malice i.e. spite, ill-will, or abuse of privilege. Whether or not the maker of the statement has acted out of malice is a matter of fact to be decided by the jury or the judge. An example of this would be where the real motive behind the defamatory reference was spite at the employee’s leaving his job or if the person making the statement intended to slander the employee.
Finally, the same rules as set out above apply equally to communications made after the initial reference is given. If, as an employer, you give a good reference about an employee and you subsequently discover that he is dishonest, as an employer you have a duty to communicate your discovery to anybody who has relied on your initial reference.
David Phelan
June 2003