honestly and in good faith, will likewise be privileged. So, too, with regard to a communication made to the other servants as to why their fellowservant was dismissed, if the reason for his dismissal was such as to render it undesirable that they should continue to associate with him.
Where a master has been recommended a servant by other persons, he is justified in communicating with those persons in reference to the servant's conduct.
Where privileged communication is made maliciously.—If a statement is privileged no action for libel or slander can be maintained in respect to it, even if it was untrue, unless it can be shown that it was made maliciously. If the jury should find that the master "exceeded his privilege," it would not be sufficient to render him liable unless they also found that such excess indicated malice.
Evidence of malice.—Malice may be proved in various ways; among others, by showing that the statement was false to the knowledge of the master. His subsequent conduct may also afford an indication as to his motives. The fact that the statement as to the servant's character was made in the presence of a third person does not necessarily destroy the privilege, but it is one of the circumstances to be taken into account with regard to the question of malice; this does not, of course, apply where the third person is the husband or wife, as the case may be, of the former or the proposed employer. The mere fact that the master, of his own accord, communicated with the person who, he knows, is about to engage his former servant is not necessarily evidence of any malice on his part, though the jury would no doubt take that fact into consideration. Where the statement, though defamatory, is made by word of mouth (slander), and not in writing (libel), no damages can be recovered[1] by the servant unless: (1) he can show that he has suffered some special or particular damage which was directly due to such false statement, as, for instance, that he lost the situation in consequence of it; or unless (2) the statement reflected on his capacity as a servant; or (3) imputed to him the commission of a criminal offence; or (4) charged him with suffering from a contagious disease involving some moral disgrace; or (5) in the case of a female, imputed to her unchastity or adultery.
Return of character or testimonials when the servant leaves.—A letter written in answer to inquiries is ordinarily considered to be the property of the person intending to engage the servant. And although it has sometimes been alleged that there is a custom by which a master is bound, if the servant leaves within the first month, to hand over the character so received to a subsequent master, such custom, even if its existence were proved, would be held to be unreasonable. On the other hand, a general testimonial of good character intended for future use must be restored to the servant when he leaves. If, however, the servant is discharged for misconduct, the master apparently may, and should, write upon it that the person to whom it relates was afterwards in his service and was dismissed for misbehaviour. But a master who maliciously defaces such testimonial by writing upon it a disparaging statement will be liable to substantial damages.
Liability involved in giving or using a false character.—If a master gives a character which he knows to be false and thereby induces another person to employ the servant, he will, if the servant misconducts himself, be liable for any injury which the new master may have sustained in consequence. It has also been said that if a servant were engaged with a good character from his last place and it afterwards came to the knowledge of the master that such character was undeserved, it would be dishonest to pass on the good character to a subsequent employer.
To forge a character with intent to obtain thereby a situation is an offence against the common law; and there are statutory provisions for preventing the giving and use of forged or counterfeit characters.
- ↑ An action for libel or slander can only be brought in the High Court.
