I often hear statements like: “My manager publicly insulted and made untrue allegations about me to my colleagues. I felt very embarrassed” or “My former employer gave negative and untrue remarks to a potential employer during a background check and I ended up loosing that opportunity”. “Can I sue my employer for defamation?”
What is workplace defamation?
Generally speaking, defamation is the publication of a statement which reflects on a person’s reputation and tends to lower him/her in the estimation of right-thinking members of the society generally or tends to make them shun or avoid him/her.
Defamatory statements can either be slander (oral utterances or gestures) or libel (written statement).
At the work place, defamation occurs when an employer publicizes or causes to be publicized false statements which ridicule and injure the reputation or credit of the employee. For instance through public announcements, newspaper publications, background checks, publicized investigation reports and group internal memos.
What makes an employer’s statements defamatory?
An employee alleging defamation must prove the following:
The employer made false statements against an employee
The employer ‘published’ or caused statement to be published
The employer knew or ought to have known that the statement was false
The statement was not privileged
That the statement was not an expression of the employer’s opinion
The employee suffered as a result of the statement.
The employee must prove that the words or material complained about were not mere personal stigmatization but that they damaged his/her employability.
In George Muthoka Kioko Vs ICD (K) Ltd ELRC Cause No.264 of 2014. The court stated that the affected employee must demonstrate how his employability was affected owing to the actions of the previous employer.
Similarly ,in Naqri Syed Omar Vs Paramount Bank Limited & the AG (2005) e – KLR. It was the court’s view that where an employee’s attractiveness to potential employers’ is damaged or diminished as a result of the actions of the employer in the process leading to termination of employment, the court may grant damages to compensate the lost employability. The manner of dismissal and negative publicity attended to the process of dismissal have the potential to damage or lower the employee’s stock in the labour market.
Interestingly, in Ezekiel Nyangoya Okemwa Vs Kenya Marine & Fisheries Research Institute (2016), the court awarded the claimant employee Ksh 20,000,000/ as damages for among others; ‘diminished employability’, finding that the claimant suffered injury as a person and as a professional. He was globally stigmatized.
Employer liability for employee defamation
With the extended definition of an ‘employer’ under the Employment Act, 2007 to include the employer’s manager or agent, it stands that employers can be held liable for defamatory statements made by supervisors, managers and other employees in the course of employment.
To avoid liability, I recommend the following;
Stick to the facts of the issue (confirmed truths).
Keep personal opinions separate from the facts, otherwise, clearly state that they are personal opinions.
Only publicize statements on a need-to-know basis.
Apologize where necessary.
This post is intended for information only. It is not legal advice.