What to do if your former employer wrote a defamatory job reference
An employer’s reference can make or break a job candidate. A good reference can attest to a candidate’s skills and qualifications, while a bad reference can damage their chances of getting the job. If your former employer has provided a defamatory reference, there are a few things you can do.
Can a Job Applicant Sue After Receiving a Defamatory Reference
Yes. a job applicant may sue after receiving a defamatory job reference because the reference may contain false or misleading information that caused the applicant to be rejected for the job. The reference may also contain information that is protected by the applicant's right to privacy, such as medical information or information about the applicant's criminal history. If the reference is found to be defamatory, the applicant may be able to recover damages from the person who gave the reference. The reference must be published or communicated to a third party, and the applicant must suffer damages as a result.
To prove defamation, the applicant must show that the reference was false or misleading and that the reference was made with the intention of harming the applicant's reputation or causing the applicant to lose a job opportunity. Having said that, recent court decisions in England have not been particularly favourable to former employees who have been defamed by a defamatory job reference, even in cases where it was clear that the defamatory reference had caused them to struggle to secure new employment.
Whilst you can sue for defamation over a defamatory job reference as long as you can show that the defamatory job reference had damaged your reputation, there are various defences that are usually available to former employers who provided a job reference that the former employees may consider as unjustified bad reference or as job reference which is defamatory.
What do you need to prove before you can sue a former employer for defamation?
Before you can successfully sue a former employer for defamation in relation to a defamatory reference, you need to show that the defamatory job reference was given maliciously. In other words, if the former employer can show that at the time of giving the job reference they believed it to be truth, they will be able to rely on the defence of truth to successfully defend your defamation claim.
How can a former employer defend a claim for defamation over a defamatory job reference?
The former employer will need to show that they genuinely believed that what they wrote in the job reference was true. At the same time, the former employer will, in many cases, be able to rely on the defence of qualified privilege on the basis that they had a legal, social or moral obligation or interest to publish the words complained of in the job reference to the person reading the reference.
In one case, where the former employee sued his employer after it provided a job reference to a potential employee that contained incorrect information about him which eventually caused him to lose a job, the court ruled that although the former employer acknowledged that the reference was defamatory, the relationship between referees and employers met the test to be considered as qualified privilege.
Can you sue your employer for negligence for a defamatory job reference?
Yes, you can sue your employer for negligence if the defamatory job reference did in fact cause harm to you. A defamatory reference is material to provide an accurate job evaluation, and if your employer acted with malice, it can also result in punitive damages. Suing your former employer for negligence over a defamatory job reference might also provide you with a longer limitation period to take them to court, as the limitation period for defamation is 12 months compared with up to 6 years in cases of negligence.
Can you sue your employer in an employment tribunal for a defamatory job reference?
If you were unfairly dismissed from your job and then your employer provided a defamatory reference to your prospective new employer, you can ask the employment tribunal to deal with the question of defamation in addition to the issue of unfair dismissal. In fact, in an important High Court decision, where the court rejected a defamation claim which was linked to an unfair dismissal of an employee, the court explained that Parliament provided an exclusive forum for handling unfair dismissal cases and therefore any claim of loss arising from that dismissal should be adjudicated in the specialist employment tribunal court.
It would be wrong for employees to file what amounts to unfair dismissal claims in another arena because this might allow them to possibly bypass the statutory limit on damages for unfair dismissal and allow them to recover legal costs, which are not usually recoverable in employment tribunal proceedings. The High court, where you would usually bring a claim for defamation will be reluctant to hear your case on the basis that the High Court is not the most appropriate venue to determine what is in fact an employment law dispute.