For example, if an employee was fired for theft and their employer provides a positive reference with no suggestion of impropriety, that employer can be sued if the employee goes on to steal from their new company.
Employees often assume that a damaging reference is automatically defamatory. That is not so.
Defamation, in its simplest terms, involves a statement that would lower a person’s reputation in the eyes of a reasonable listener. But the analysis does not end there. The law provides defences — and in the employment context, one looms particularly large: qualified privilege.
Certain communications are protected because the law recognizes a social interest in them being made freely. References fall squarely within this category.
Courts have consistently held that employment references attract qualified privilege. That means the person giving the reference is protected, even if the statement is damaging, provided it is made honestly, without malice and without reckless disregard for the truth.
Employees are often surprised to learn that the privilege analysis comes first. If qualified privilege applies and is not defeated by malice, the claim effectively ends there. The former employee does not even reach the question of whether the statement was true.
Truth — or “justification” in legal parlance — is, of course, a complete defence to defamation. But in practice, the shield of qualified privilege is what gives employers comfort in speaking candidly.
Malice will...
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