When a complaint it made, there is a possibility that a complainant, organisation or another party involved may be threatened with an action for defamation as a response to the complaint or evidence put forward. A defamation case would involve the damaging remarks or information being shared with more than just those legitimately involved in the investigation, such as the parties and workplace investigator. In situations when defamation action occurs, it may be as a result of witnesses’ statements being shared with the wider workplace, either intentionally or accidentally.

An employer and employees can also face this threat when they attempt to deal with a complaint internally. Therefore, a Manager should inform a Complainant that it is in the Complainant’s best interests not to discuss the complaint or related information with the wider workgroup.

There is little risk of a defamation action succeeding against a genuine Complainant who seeks information and support from appropriate people only and does not breach their confidentiality obligations.

Each person who is legitimately provided with information about the complaint is similarly at risk and has a similar responsibility. Even leaving some incriminating detail on a computer screen or on a page on someone’s desk can be “publishing” defamatory material.

This places the employer and sometimes the individual at risk of legal action.

The normal defence to an action for defamation in this situation is called “qualified privilege.” Qualified privilege applies when a person has a duty or a right to tell another person something and that other person has a corresponding duty to receive that information. Truth is also a defence to a defamation claim, albeit harder to prove. This highlights the importance of all those involved being truthful in their submissions during an investigation.

All defences to defamation require that the person giving the information is not acting with malice.

To help avoid the risk of defamation claims, all staff within an organisation should be aware of the complaints handling process, knowing who to report their concerns to and how this should be done.

Any person involved in an investigation should also understand the damage that breaching confidentiality could do; compromising the investigation, reputational damage and potential disciplinary consequences for a worker found in breach of confidentiality provisions. It must also be understood that confidentiality breaches and defamatory comments are risks inside and outside the workplace, including conduct on social media.


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