Criticising an employee’s performance will not be defamatory if it is not malicious

A former employee who brought defamation proceedings against the BBC for allegedly making defamatory comments during a capability review has seen his case dismissed by the High Court.

So, what is defamation? Defamation concerns the publication of materials which result in a loss of trade or causes a reasonable person to think less of an individual or business.

The employee in this case had been criticised for his performance and in particular a ‘feedback schedule’ document had been produced by the BBC for use in a meeting; this document counted as a publication. The document referred to instances where the employee had made errors or failed to communicate with the team. The employee claimed the criticisms were false and motivated by malice.

The High Court, when considering the BBC’s argument for the case to be dismissed, disagreed with the employee and said the minor criticisms would not reflect badly on the employee’s reputation.

This case could have been worrying if the High Court had decided any other way since in performance or capability procedures, criticisms need to be discussed openly with the employee as they must be made aware of any performance concerns and given opportunities to improve. However, the lesson to be learnt by employers is that criticisms which are put into a document must be valid and supported by evidence as any indication that there were malicious intentions behind such criticisms may allow a defamation claim to be successful. This should also be borne in mind when undertaking performance reviews of agency workers.

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