High Court holds that criticism of employee's performance was not defamatory.

In this case, a former employee brought defamation proceedings against the BBC as a result of comments made during a capability procedure that led to his dismissal.

The BBC applied to have the employee’s claim struck out and the High Court granted the application. The court held that the criticism of Dr Daniels' performance in the capability procedure was not defamatory because it would not lead an ordinary, reasonable and sensible person to think less of him. Furthermore, the criticism was not capable of adversely reflecting on any business or professional reputation of Dr Daniels in the eyes of reasonable people (if indeed a person in his position could be said to have a relevant reputation for this purpose).


This case provides helpful guidance on the limited scope for libel action in the employment context. While it is possible for a defamation claim to be brought by an employee against a present or former employer, there are strict legal requirements that must be satisfied in order to do so. The High Court’s ruling in this case emphasises the considerable difference between being the subject of negative comment and defamatory comment that might give rise to libel action.


To succeed in a defamation claim, the claimant must prove that the defendant published defamatory material about them. Defamatory material is that which tends to make right-thinking people think worse of the subject. In both personal and business defamation cases, a threshold of seriousness is applied to exclude trivial claims and ensure that the law is not undermined by bad manners or discourtesy being put on par with attacks on character.

Employer’s can argue fair comment, justification, and privilege as three possible defences against a defamation claim. The most common form of privilege (and the one most likely to be argued by an employer) is ‘qualified privilege’, whereby the employer argues that it had a moral, social or legal obligation or interest in making the publication, and the recipient had a corresponding obligation or interest in receiving it. The defence of qualified privilege is lost however, where the employer has acted with malice.

In this case, the employee had been shown a feedback schedule in relation to his performance, which referred to errors he had made and his failure to communicate adequately with the team or to follow instructions. The employee issued defamation proceedings against the BBC, claiming that the comments had been false, unsupportable, and motivated by malice.

The court held that the ordinary, reasonable, sensible person would not consider the minor criticisms made reflected badly on the employee’s reputation, whether in respect of his personal, professional or trading reputation.