There will be few in HR who have not at some point heard an employee say that he is so incensed by something said about him the course of disciplinary or grievance procedures that he is going to sue for defamation. This is almost always said in anger and for a great many very sensible reasons almost never happens in practice. But what if it does? The recent High Court case of Maria Joao de Azavedo Camacho v OCS Group UK Limited explores a defamation claim made by Ms Camacho against her employer on the back of complaints made against her in a grievance procedure.

Now to the facts.OCS’s grievance policy specified that would it investigate any formal grievance raised, hold a meeting to discuss it, inform the employee in writing of the outcome and provide a right of appeal. In December 2019, two of Ms Camacho’s colleagues lodged grievances about her treatment of them, especially her alleged arrogance, bad management style and intimidation. The complaints were investigated and witness interviews with additional colleagues were held. Disciplinary proceedings were then initiated against her based on the evidence received, and she was thereafter dismissed for bullying and breach of trust.

Ms Camacho lacked the length of service necessary to bring an unfair dismissal claim and so took the imaginative step of alleging that the oral statements about her behaviour made by the other employees in the course of the grievance were defamatory. She also claimed defamation against OCS on the basis that it was vicariously liable for the employees’ statements which had led to her being dismissed. OCS applied to strike out the claim on the basis that, in the light of the decision in Friend v Civil Aviation Authority in 1998, it had an unanswerable defence based on consent. In summary, Friend had held that an employee whose contract included a disciplinary procedure had impliedly consented to the re-publication of defamatory statements about them to assist in disciplinary proceedings, and said that it is  “a defence to an action for defamation that the claimant consented  to the publication of which he now complains by participating in or authorising it. Thus, if the claimant has consented, expressly or impliedly or by conduct,  to the publication of the words substantially as they were used,  …there is a good defence to the action; but the proof of consent must be clear and unequivocal.”

In other words, in effect, if your contract includes a grievance procedure then you have implicitly agreed that grievances about you can be brought and publicised to the extent necessary to find out whether they are well-founded or not. So Ms Camacho’s claim was initially struck out without a full hearing as having no reasonable prospects of success.

On her appeal to the High Court, Ms Camacho accepted that consent required for that defence to be run did not have to be contractually binding. That means that the usual statement in grievance procedures that they do not form part of the contract does not affect the analysis. This then raised the question of what exactly Ms Camacho had consented to in terms of allegations by others.

The Court found that Ms Camacho had agreed that she could raise grievances which would be investigated pursuant to the procedure. The procedure gave her the right to raise a complaint which would be subject to the policy, but it was difficult to connect the dots to argue that the contract also implied that she had agreed anything about others having the right to bring grievances about her, or to anything about exactly what could be said or published in the context of such grievances. The burden was on OCS Group to provide evidence of Ms Camacho’s consent and – inevitably  — there was no evidence of her consent to the specific publications which were the subject of the claim. Even if the procedure provided evidence of consent to the principle of statements made during a grievance investigation having to be published to be looked at properly, such evidence was very vague.

And what about the nature of the statements themselves? The grievance policy stated that employees should not make false and/or malicious grievances but that should hardly need to be said as it would be a breach of the employees’ contract of employment to do so, so it is unlikely that that caution made any difference to the end result. Even if Ms Camacho had consented to the principle of others raising grievances about her under the policy, it was on the implicit basis that that they should not make false, malicious or dishonest grievances.

So Ms Camacho was given leave to pursue her claim after all. We shall see whether she actually does so, these things generally being far easier to threaten than to follow through with. Issues of expense, delay, exposure to the other side’s costs if you lose, the unavailability of Legal Aid and the risk of adverse PR all militate against the pursuit of defamation claims in all but the most serious cases, which this quite clearly isn’t.

As the judgment notes, consent was the only defence available at the preliminary stage here, but it isn’t the only defence to defamation.  Especially on matters as subjective as arrogance and management style, the most likely defence would be “honest opinion”.  To run that, the maker of the statement must show that it was their genuine opinion and the statement itself must indicate the basis of that statement (neither likely to be a problem in the context of an internal grievance). A defendant can also rely on the publication on a matter of public interest and qualified privilege.  In our next blog, we will look at the latter two. This often has wider implications, and so we will discuss this with particular regard to non-financial conduct (think bullying, think harassment) which is now proposed to fall within the remit of FCA reporting. 

Whether Ms Camacho goes the distance or not, her case raises the question of whether there will now be more libel claims springing from grievance procedures. If the new government removes the qualifying period for unfair dismissal as currently mooted, there will be much less need for people to take that route, but of course that will only assist those who actually lose their jobs as a result of allegedly defamatory remarks.  Anyone thinking about this option should be gently encouraged by HR to heed the risks above – particularly of the “Streisand Effect”, so named after an incident involving the icon, Barbara Streisand, in which attempts to suppress certain information had the inadvertent effect of spreading it further.