Can an employer be held vicariously liable for its employees’ defamation

Mr Breton Jean brought proceedings for a second time against his former employer, HK Bellawings Jet Limited (Bellawings), after his employment was terminated in December 2016. On 31 October 2024, the Hong Kong District Court¹ dismissed his allegations of defamation against three of his former colleagues who were named as second to fourth Defendants, as well as Bellawings, the first Defendant. This case comes after his success in the Hong Kong Court of Appeal²(see our article here) in obtaining compensation from Bellawings for untaken "rest days".

In the defamation action, the former pilot claimed three emails sent by his former colleagues at the time of his dismissal were defamatory towards him. He claimed Bellawings was vicariously liable for their defamatory statements because the emails were sent by those colleagues in the course of their employment. The emails alleged drunk and inappropriate behaviour, sexual assault, abandonment of duties and coercion of an employee into flying without the proper qualifications. The individuals who sent the emails copied each other and personnel from HR and management into their respective emails.

The Defendants successfully relied on the defence of qualified privilege to defeat the claim for defamation. This defence applies to a communication where the person making it has an interest or duty to send it, and the person receiving it has a corresponding duty to receive it.³ Any findings of malice on the part of the communicating parties would be fatal to this defence. The court found that employers and employees in a business have a common interest in the way in which the business is carried on.⁴ The emails were not published any further than was required for the effective making of the communication in the ordinary course of business.⁵ They were not sent to any personnel outside Bellawings and the individuals who sent the emails could be expected to be put on notice of Mr Breton Jean's behaviour as they all worked under him. As malice was not sufficiently pleaded, the emails were found to be covered by qualified privilege and there was therefore no finding of defamation.

Even though the defence of qualified privilege had defeated the defamation action, the court still considered obiter whether Bellawings would be vicariously liable for the employees' statements. Applying the general principles on vicarious liability from the English cases of Armes v. Nottinghamshire County Council ⁶and Mohamud v Wm Morrison Supermarkets plc⁷ to defamation, the court held that Bellawings would only have been vicariously liable if the employees published the defamatory statements whilst acting within the scope of their employment. This would depend on whether the comments made were "so closely connected with acts that the employee was authorised to do that it could be fairly and properly regarded as having been done by them while acting in the ordinary course of their employment".⁸ Mr Breton Jean's Counsel argued that there was sufficient connection between the Defendants' roles as members of the cabin crew and colleagues of Mr Breton Jean and the complaints made, and that by employing them, Bellawings opened itself up to the risk of its employees committing a tort on its behalf.⁹

The court dismissed this argument. The fact that the employees were complaining about Mr Breton Jean's work performance did not make the complaint a business activity of Bellawings. Parris v. Ajayi and Camacho v. OCS Group UK Ltd were distinguished on the basis that the defamatory comments in those cases were published as part of a formal grievance procedure. English employers are required by law to set out a formal grievance process and therefore publication of grievances can be considered part of the employer's business activity or at least an activity that would have been explicitly authorised by the employer.

The court instead relied on the English case of Pena v. Tameside Hospital NHS Foundation Trust,¹⁰where a complaint made by a consultant about a surgeon in the hospital was not held to be closely connected with the consultant's clinical or administrative role. The complaint was that the surgeon was seeking a vote of no confidence in the board of the Hospital Trust in order to protect his own remuneration and therefore, whilst it did clearly relate to the way the hospital was run and the surgeon's role in the hospital, it reflected only the consultant's personal views. It would not "accord with justice for the Trust to be fixed with legal liability for what he chose to say". In a similar vein, the employees were not specifically authorised to send the emails about Mr Breton Jean, nor was it part of Bellawing's business activity (or the employees' roles within the company) to do so.

Whilst the discussion of vicarious liability in this case was made obiter, it is significant as the first time a Hong Kong court has considered employers' vicarious liability in relation to employees' defamation. It should provide some comfort to employers that they will likely not be held liable for employees' personal views when expressed outside their specific employment responsibilities. Employers should still encourage employees to exercise caution in their communications and ensure complaints are dealt with formally and within a limited group of company personnel.Acknowledgements to Trainee Solicitor Faith Colenutt for research and contribution to this article.

1. Breton Jean v. HK Bellawings.jet Ltd [2024] HKDC 1695, 31 October 2024..
2. Breton Jean v. 香港麗翔公務航空有限公司 [2022] HKCA 1736, 28 November 2022.
3. See §31(3) of Breton Jean v. HK Bellawings.jet Ltd [2024]; Jonathan Lu v. Paul Chan Mo Po [2018] 21 HKCFAR 94 at §§13-14.
4. Keith Singh v. Joseph Weayou [2017] EWHC 2102 (QB) at §101; Kostakopoulou v. University of Warwick [2021] EWHC 3454 (QB) at §83.
5. See §42 of Breton Jean v. HK Bellawings.jet Ltd [2024]; Pang Siu Wing v. Chungshan Commercial Association Hong Kong [2024] 1 HKLRD 1031 at §73.
6. [2018] AC 355.
7. [2016] AC 677.
8. See §57 of Breton Jean v. HK Bellawings.jet Ltd [2024]; Duncan and Neill on Defamation and Other Media and Communications Claims at §10.19.
9. See §59 of Breton Jean v. HK Bellawings.jet Ltd [2024]; Parris v. Ajayi [2021] EWHC 285 (QB) and Camacho v. OCS Group UK Ltd [2024] ICR 1019.
10. [2011] EWHC 3027 (QB) at §§32-34.