Liable for Defamation over Job Reference Letter

[Jason L]

A former employee, let's call him John, asked me for a written reference letter for a job he was applying. I was not particularly happy with John’s performance while working for me and also how he left my company with very little notice.

I decided to write the reference letter for John and let him know what I really thought about his time working for me. I was honest, I didn’t exaggerate, some of it was positive, but I did state that in my opinion his performance was less then adequate and I would not hire him again. I wrote the reference in an email and sent it to John (only to John).

Last week John got in touch, he told me that my reference letter cost him the job and that he was going to sue me for defamation. Is this possible? Can I be liable for defamation if I give a former employee a less then favourable written reference? I only sent the letter to John and I didn’t actually expect him to forward my letter on to his new prospective employer. Should I be concerned?

 

[Tim W]

It is for "John" to show, on the balance of probabilities,
that he suffered damage to his reputation
(and any consequent economic loss)
through publication of material, by you, about him, to a third person.

You said

I wrote the reference in an email and sent it to John (only to John).

If that's true, then I don't see where you published to a third party.
And on that basis alone, I do not see how a claim by him against you could succeed.

Further, if it was John himself who published your email
(eg by forwarding it to a prospective employer),
then it was not you who published it at all.
If he published material, when he knew, or reasonably should have known,
might damage his reputation, then be that at his own risk.
And on that basis alone, I do not see how a claim by him against you could succeed.

There is a also a possible defence in the fact that it was true,
but in Victoria, this comes with some strings attached.

As you are in Victoria, I invite you to look at the chapter on defamation (Victorian style),
in the excellent Law Handbook <click here>.

 

[Sarah J]

Hi Jason,

I agree with Tim.

If John was the one who published this information to third parties, he assisted (if not, caused) the dissemination of this information and therefore, it cannot be defamation.

Further, employment references are rarely held to be defamatory because they are often a personal opinion or belief, and stated as such (i.e. not an allegation of fact about the person) and given the nature and circumstances surrounding a reference letter (i.e. people expect this to be from the perspective of a former employer and to possibly contain both positive and negative information about an employee) a defamation argument would be extremely difficult (though not impossible) to prove. If the letter contained information about your experiences with the employee and your belief about the employee's character or work ethic, this would not defamatory. If it contained allegations of misconduct or a crime that was not founded on reasonable fact/evidence, this could be defamatory.

 

[Jason L]

This is great to hear, thanks you both so much for your help!

Jason