These are two separate areas of law which you wouldn’t necessarily expect to find side by side in a blog.
However, they are increasingly seen together. We have noticed this becoming more prevalent in recent months. Unfortunately, redundancies caused by the Coronavirus economic downturn have led to former employees venting their frustrations in public.
What is Defamation?
Defamation is the umbrella term for libel and slander. It is a publication of material which adversely affects a person’s reputation. The usual assessment is whether the words tend to “lower the claimant in the estimation of right-thinking members of society generally”. Libel is in a lasting form, such as print, online or broadcast. Slander is transient, such as words or gestures.
The Defamation Act 2013 states that “serious harm” must be caused, or be likely, for a statement to be defamatory. Companies can be defamed, but it is more difficult than for individuals to prove serious harm as a company will usually have to show a serious financial loss.
What does it have to do with Redundancy?
One sad effect of COVID-19 is the number of businesses being forced to make staff redundant because it is simply not financially viable to retain them and there is no longer a business need for them. This is especially true in the hospitality sector.
We’ve seen examples of disgruntled redundant staff taking to social media and making derogatory comments about their former employer. This can happen even if the employer had genuine business reasons for the redundancy and has tried to go about the process lawfully and sensitively. Many of the comments may not meet the threshold for defamation, and will probably be a storm in a teacup which does little damage. People are free to say what they choose, within the law, and it is not surprising that people get upset if they lose their job. However, If the comments are persistent, or published widely, and if they meet the above definition of defamation, employers may feel that the reputation of them or their business is being harmed and they may wish to take action.
What Can I do if this has happened?
We are not PR or communications advisers, but it is generally not thought good practice to respond to online defamatory comments, other than to encourage the person to contact you to resolve it privately. You can also contact the site that is publishing the comments, although we often hear that nothing is done to take things down.
From a legal point of view, there is a potential claim for defamation. We can advise on this. We would consider the content of the comments, and whether they amount to defamation. We would usually start by sending a letter to the former employee, requiring them to take down their comments, to agree not to make further defamatory comments, and threatening court proceedings if they fail to do so. In many cases, this is enough to limit the damage. If court proceedings are needed, defamation proceedings are often expensive and difficult, so we would help you to make a fully informed decision as to the costs and benefits to you of taking things further. We would continue to attempt to arrive at a settlement for you either by way of apology or a financial settlement if appropriate, using the relevant court pre-action protocols.
How Can I Stop this Happening?
You can’t. As mentioned above, people get upset when they are dismissed, even if the reasons are valid, but there are steps that would make defamation issues less likely. These unprecedented times have led to employers having to take unexpected and quick action to make redundancies. We have seen stories in the news where the sensitivity of handling has sometimes been left at the door. It is difficult to tick all the boxes when you are struggling as a business owner, which is where we can help. Our employment law and HR advisers can advise you on the legal side of redundancies to make sure you are following lawful processes, but they can also help you to communicate the news in a way which is sensitive and which helps the employee understand the reasons for your actions. This can minimise the risk of unwelcome public complaints that might be harmful to your reputation.