EMPLOYMENT LAW NOVEMBER/DECEMBER 2020
Employment law SOS
This month, our employment law expert explores how to deal
with people posting untruths on job review boards, how to
discipline an employee with ADHD and fi xing a mix-up in payroll
BY CATHERINE WILSON, PARTNER AND HEAD OF EMPLOYMENT LAW, KEEBLES LLP
A former employee has
begun posting lies about
the company on employer
review sites. Everything he is
saying is demonstrably untrue.
Is there anything we can do
to stop him posting? We’re
currently recruiting and are
worried that people will be
put off applying.
This kind of behaviour is
unfortunately increasing and can
be very damaging. Fortunately,
you have several options
available to you to both repair
your reputation as well as obtain
compensation for the damage.
I have focused on the options
open to you as an employer.
Assuming you know the
identity of the former employee,
the starting point for this kind of
issue is usually a cease and desist
letter to the person making
the comments. This may be
escalated to a claim for damages
if the comments continue.
A more immediate option
would be to contact the websites
and seek removal of defamatory
postings, online content and
search results. The preservation
of evidence by taking screen
shots of the off ending posts is
also an important fi rst step.
In some circumstances,
however, more formal action
is required. You describe the
information as ‘demonstrably
untrue’ so the comments could
fall within the defi nition of
defamation. Defamation is the
publication of a statement to a
third party that causes or is likely
to cause serious harm to the
reputation of the subject.
Harm to the reputation of a
company must be serious and
have caused or be likely to cause
substantial fi nancial loss. There
are several elements that must
be established for a claim by
the company for defamation to
succeed. These go beyond mild
abuse or even inaccuracy.
If you pursue this route then
you must establish that the
posts are in fact defamatory. Put
simply, a person outside of the
business would think worse of
them because of the statement.
You need to show that
the words complained of are
published to a third party and
that the former employee
published or was responsible
for the publication of the words.
You also need to show that the
defamatory comments referred
to you as a business.
It’s important to understand
what defences may be open
Where appropriate it can
be possible to seek an urgent
order from the court to prevent
publication of your confi dential
information. If the information
has already been published, then
legal proceedings can be issued
for breach of confi dence with a
view to removing the material
and/or damages.
We have recently hired
a new welder. He is
excellent at his job, but has
signifi cant ADHD, which
means he is prone to impulsive
actions and often loses focus.
As we run to tight deadlines,
we can’t aff ord to have him
distracting himself or others
during the working day. We
are unsure of the correct
disciplinary procedures.
Generally, employees only
acquire statutory protection
against unfair dismissal after
two years’ continuous service.
Of course, short-serving
employees should still be
treated in a reasonable and
fair fashion, and those with
‘protected characteristics’
automatically have protection
against unfair treatment from
the start of their employment.
The Equality Act 2010 lists
these protected characteristics.
They include race, gender, and
less visible characteristics such
as religion/belief and disability.
These are collectively known as
Day One Rights.
Conditions such as ADHD
can fall within the defi nition
of disability. However, it is
important to note that ADHD
is not automatically deemed
a disability, unless it has a
substantial and long-term eff ect
on an employee’s behaviour and
ability to perform their work.
bakhtiarzein /stock.adobe.com
to your former employee. For
starters, the burden of proving
the statement is true would rest
with them. There is also the
option to show that his remarks
are regarded as an ‘honest
opinion’. It is also a defence if
the statement was made in the
public interest.
Most reported cases involving
corporate defamation relate
to bad reviews which caused a
direct loss of business.
There are other options
available to you to help you
identify the individual posting
including working with forensic
IT investigators to remove any
confi dential information – all
material, non-public, businessrelated
information.
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