Workplace communications—whether in emails, performance reviews, workplace investigations or casual conversations—can cross into defamation territory. Understanding the line between legitimate work-related feedback or communications, and legally actionable statements is critical for employers and employees alike.
The legal threshold for workplace defamation
A work-related statement is defamatory under the uniform Defamation Act 2005 if it meets the following criteria:
- It is published or communicated to another person
It must be communicated to at least one third party (e.g., colleagues, clients, or HR); and - It contains a defamatory meaning
It must lower the victim’s reputation in the eyes of an ordinary person (e.g., accusations of theft, incompetence, or unethical behavior); and - It causes serious harm to the victim’s reputation
‘Serious harm’ is demonstrated by the seriousness of the allegations, their reach, their believability and the tangible damage they caused, such as job loss, demotion, or reputational harm that affects career prospects.
Unlike casual criticism, defamatory statements are false assertions of fact- not honest opinions or assessments. For example:
Defamatory: “Sarah stole company funds,”
Not Defamatory: “I think Sarah’s work quality has declined,”
Common workplace scenarios potentially involving defamation
- Performance reviews
A manager falsely claims an employee ‘fabricated client reports’ in a written evaluation shared with senior leadership. - Emails
A supervisor accuses a team member of harassment in a company-wide message. - Workplace complaints & investigations
An employee accuses another employee of bullying via a confidential complaint, leading to an investigation or disciplinary action. - Reference checks
A former employer tells a prospective employer, ‘Timothy was fired for fraud,’ despite no such finding. - Social media posts
A coworker posts on LinkedIn: ‘Our CFO is embezzling funds’.
Defences: When workplace statements are protected
Even if a statement is defamatory, various defences may protect the person who made the statement. These defences include:
- Truth
Proving the statement’s accuracy (e.g. theft confirmed via CCTV). - Qualified privilege
Protects communications made in good faith during workplace investigations, performance reviews, disciplinary processes, or in the ordinary exercise of an employee’s duties.
NOTE: The defence of qualified privilege will fail if the statement was made with malice, ulterior motive or a personal vendetta against the victim (e.g a manager fabricates claims against an employee to have them fired because the manager is worried about the employee taking their job). - Honest opinion
A reasonable assessment based on available facts (e.g ‘based on the audit, I believe Liam spent the funds’).
How an employer can mitigate the risk of defamation in the workplace
- Implement clear policies
Implement clear and comprehensive workplace policies including confidentiality requirements, social media guidelines and complaint-handling procedures. - Document evidence
Maintain records of complaints, investigations, and communications to justify statements. - Limit distribution of sensitive material
Share sensitive allegations only with necessary parties (e.g., HR investigators). - Train Staff
Educate managers on distinguishing factual reporting from speculation during reviews or investigations.
What to do if you have been defamed
If you’re targeted by false a workplace statement(s):
- Document everything
Save emails, screenshots, witness accounts, and any evidence of reputational harm (e.g missed promotions, client losses) - Request an apology and retraction.
Ask the publisher to issue a written apology or correction. - Commence legal action
Take formal legal action by issuing a concerns notice. If the matter still remains unresolved, pursue damages in Court if you have suffered serious reputational harm.
Overall
Employers must balance transparency with caution. Employees should act swiftly to address false allegations that harm their reputation. By understanding and distinguishing defamation in the workplace, employers and employees can foster accountability without crossing into legal liability.