An interesting case reported in the Industrial Relations Law Reports deals with claims of defamation arising from statements made during the grievance process. Joao de Azavedo Camacho v OCS Group UK Ltd [2024] IRLR 660
The legal facts:
The claimant was employed by the defendant company as a manager under an employment contract that made her subject to the company's disciplinary and grievance procedures.
Two colleagues lodged grievances against the claimant, complaining about how she treated them.
During the investigation into those grievances, two other colleagues were interviewed and made oral statements that the claimant alleges were defamatory.
The defendant relied on the defence of consent based on the claimant's acceptance of the disciplinary and grievance procedures in her contract.
The claimant argued that Friend v Civil Aviation Authority was limited to disciplinary procedures and did not extend to statements made during grievance investigations.
The defendant contended that by analogy with Friend, the claimant had consented to colleagues making defamatory statements about her during the investigation of grievances brought against her under the grievance procedure.
The law applied:
Principles of consent and volenti non fit injuria in defamation law - The principles of consent and volenti non fit injuria in defamation law are crucial in determining the liability and defences available in cases involving defamation. The principle of volenti non fit injuria, which translates to 'to a willing person, no injury is done', applies in defamation law under specific circumstances. This principle is particularly relevant when the person defamed has willingly and knowingly placed themselves in a situation where defamation could occur, especially in contexts involving public discussions or debates.
In the case of Pfeifer v Austria - (2007) 24 BHRC 167, the European Court of Human Rights discussed the application of the volenti non fit injuria principle in defamation law. The court noted that if a person actively and of their own free will initiates or becomes involved in a public discussion, they essentially consent to the heightened risk of statements that could be defamatory. In such scenarios, the state authorities are justified in prioritising freedom of expression over the individual's right to the protection of their reputation, provided there is a sufficient factual basis for the statements made.
This principle underscores the balance between freedom of expression and the protection of reputation, highlighting that individuals who engage in public debates may expose themselves to harsh criticisms, which does not necessarily equate to defamation if done within the factual context of the discussion. Thus, the application of volenti non fit injuria in defamation cases serves as a significant defence, mitigating the liability of the defendant when the claimant has consented to participate in circumstances likely to invite dispute and criticism.
Case law on the scope of consent to defamatory statements in employment disciplinary proceedings: Friend v Civil Aviation Authority [1998] IRLR 253, Crossland v Wilkinson Hardware Stores Limited [2005] EWHC 481, Parris v Ajayi [2021] EWHC 285 (QB).
The ruling:-
The ruling took into consideration when allowing the claimant's appeal, finding that the defamation claim based on the statements made during the investigation of grievances against her, could in principle be pursued.
The key legal findings in this case were that:
The decision in Friend was based on general principles of consent rather than a new principle specific to disciplinary procedures. Each case turns on whether the employee consented to the particular defamatory publication. The grievance policy was focused on how grievances raised by the claimant would be handled, not on conferring rights on others to make allegations against her or on the investigation of such allegations.
Agreement to a disciplinary procedure does not give a general license to publish defamatory statements about an employee in the course of the proceedings. By agreeing to the grievance procedure, the claimant had not clearly or unequivocally consented to defamatory statements being made about her by others during investigations into grievances brought against her. There may still be issues as to whether a gratuitous or irrelevant publication is within the scope of the consent given by the employee.
The nature of a grievance policy is different from a disciplinary policy. A grievance procedure may or may not involve the determination of allegations against the employee, so it is less clear that employees necessarily give consent to defamatory allegations being made about them merely by agreeing to the grievance procedure.
The Deputy Master erred in holding that the defendant had an unanswerable defence of consent to the defamatory statements made during the investigation of grievances against the claimant.
A clear policy for dealing with grievances and disciplinaries communicating to all parties what the procedure is, and what is expected of the parties involved not only assists all parties to dispose of the unpleasantness of grievances and disciplinaries, it also provides for a professional approach for all concerned to ensure there is not further fall out in these circumstances. PW-LA assist employers with reviewing and drafting appropriate procedures and policies and also provide independent investigatory services. If however as an employee or employer you require advice and assistance on how to deal with similar circumstances to this case, we are able to assist in advising and facilitating settlement.
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