March 5, 2018

Think before you speak and write!  Defamation within the context of disciplinary investigations

Defamation in the UAE is often thought of in the context of social media. However within the employment relationship context, aside from the dangers surrounding employees' use of social media platforms and managing such risks, understanding defamation and its boundaries can also play a key role in ensuring disciplinary investigations do not spiral out of the employer's control. This article explores some of the issues surrounding defamation which can arise in the context of employee disciplinary investigations.

Last year Dubai Law No. 1 of 2017 was published permitting the public prosecutor to issue a criminal order without the need for the case to be transferred to and looked at by the Criminal Courts...

So what is defamation?

Any statement or comment made, either orally or published which causes harm to the person the comment or statement is about could lead to criminal charges for defamation.

Key legislation – a summary of what you need to know

There are two main defamation offences set out in Articles 372 and 373 of UAE Federal Law No. 3 of 1987 (as amended) (the "Penal Code").  Article 372 deals with a publicity which exposes the victim to public hatred or contempt and Article 373 deals with a false accusation (through any means) that dishonours or discredits the victim in the public eye.  In addition, statements which insult a person's private or family life without the victim's consent, even if such statements are true may also be subject to severe penalties. 

There is no civil action for defamation; however, a civil claim under Article 282 of the UAE Civil Code, Law No. 5 of 1985 may be brought on the basis that a defamatory statement has caused the individual harm.

The disciplinary process

The UAE Labour Law, Law No. 8 of 1980, as amended, prescribes a minimum disciplinary process which employers are required to follow, in addition to any more onerous obligations set out in the company's internal disciplinary procedure, if relevant.  The process follows a three step approach, namely the requirement to undertake the following:

  1. Within 30 days of discovering the alleged offense, notify the employee in writing of the allegations;
  2. Give the employee the opportunity to state his case and investigate his representations; and
  3. Within 60 days of completing the investigation notify the employee in writing of the outcome, reason for any penalties and possible action undertaken in the event of a repeat offence.

The above process appears straight forward; however if the process is not managed properly, it can lead to a situation which spirals out of control and may result in the employer finding itself in a precarious position. 

Defamation within the context of disciplinary investigations

Where a disciplinary process is mismanaged, defamation can creep into all stages of the disciplinary process, for example in the way the letters to the employee are drafted discussing the disciplinary offence, or during the meeting itself should it become heated. 

Composure and considered conduct during a disciplinary process is absolutely vital.  We set out below our top tips for managing disciplinary procedures:

  1. Avoid making defamatory comments at all stages of the procedure – think before you speak and write!
  2. Educate those conducting disciplinary investigations on what is and is not acceptable practice.
  3. Consider who should be representing the employer at the disciplinary meeting.It may be advisable to have someone from HR, management or even an external third party representative who does not deal with the employee on a day to day basis and may be more likely to maintain a professional approach.
  4. Consider having letter templates and meeting scripts prepared in advance and ensure these are regularly reviewed.This will seek to reduce the likelihood of the person conducting the meeting steering off course.

Defamation penalties

So what penalties can one expect to face for charges of defamation?  Pursuant to the Penal Code, until recently, if found guilty, individuals could face up to two years in prison and/or a fine of up to AED 20,000. 

Last year Dubai Law No. 1 of 2017 was published permitting the public prosecutor to issue a criminal order without the need for the case to be transferred to and looked at by the Criminal Courts in instances of misdemeanours and contraventions, which are penalised by a "fine" only or "confinement or a fine".  Consequently, Dubai Decision No. 88 of 2017 was recently published which lists the types of criminal acts falling within the remit of the previous Law No. 1 of 2017.  Such acts may now face a reduced fine, and include those of defamation and slander within the remit of Articles 372 and 373 of the Penal Code (as detailed above).  Pursuant to Decision No. 88 defamatory acts falling within the ambit of Articles 372 and 373, save for those directed at public officials, may attract a fine of AED 2,000. 

The introduction of the reduced fines does not guarantee that the harsher Penal Code penalties will not be applied, it simply grants the public prosecutor discretion.  In addition, the fact that the public prosecutor now has authority to impose these fines without it being transferred to the Criminal Court may increase the regularity with which these penalties are imposed.    It therefore goes without saying that the introduction of the reduced fines should by no means cloud the importance, from a defamation perspective, of ensuring that disciplinary investigations are managed carefully.