<div>As Kalpana Dixit is realising, unfortunately for all the wrong reasons, employment relationships are the closest thing we have to family relationships. And just like a divorce, the breakup of a working relationship can cause feelings of resentment, betrayal, anger and an insatiable desire for revenge. Sundari Prakash may be acting on these feelings by 'sticking it' to Kalpana by giving a very bad reference to Akrur Johri, even though Kalpana doesn't deserve it.<br /><br />The question here is: Is there is a legal recourse to the 'harm' caused to Kalpana? Does Kalpana really need a pure legal recourse? My response is in the negative. Also, I believe Indian society is still struggling to evolve from a survival society to a leisure society, thus, it is premature for legislature to divert its law making machinery from more critical survival issues. <br /><br />So, does that mean that Prakash should get away with 'blue murder'? Absolutely, not. However, we need to consider whether Prakash would have reasonable defences, including the following:<br />1) Prakash has a right to speech1. But her freedom of speech does not extend to defaming2 others. According to the Indian Constitution, the fundamental right to free speech (Article 19) is subject to 'reasonable restrictions'. And defamation takes place 'by words either spoken or intended to be read, or by signs or by visible representations, to make or publish any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation, of such person.' <br />2) Did Prakash say something that was factually untrue3? People2 are allowed to make true and factual statements to others, even if they hurt a person. Only if Prakash or Geffel Stace state something definitively factually untrue, then Kalpana could have a cause of action.<br />3) Did Prakash state an opinion? She may also state opinions to others, even if harmful4. <br />4) The thing that Prakash may not do is make negative false factual statements to third parties, like Johri. Such statements may result in defamation. <br />5) Just the fact that Kalpana's separation from Geffel Stace was not an amicable one, does not give her a recourse against them. Arguably, even if she felt the separation was amicable, since whether something is 'amicable' or not, is largely a matter of perception or opinion, Kalpana would probably not have any recourse. <br />So, if Prakash said nothing factually incorrect; maybe stated an opinion that she had a right over. Maybe her flippant act could border on being careless, almost negligent. So does Kalpana have any defence / recourse? <br /><br />Let's consider certain aspects of Kalpana's 'case' now, including some obvious ones:<br />1. Her termination, its rationale, principle of LIFO5, discrimination or equal treatment is not of concern to Kalpana. Thus, we will not analyse all the laws that protect these employment situations. <br />2. If Kalpana did nothing wrong, the truth can be her best ally. <br />3. As discussed above, Prakash's negative input is not wrongful or unlawful per se.<br />Prakash's negative input may be illegal, if the same is categorised as: <br />a) Discrimination; b) Defamation, Libel or Slander6; c) Tortious interference; d) Damage to Kalpana's reputation; e) Retaliation with malicious intent; f) Disparagement; or <br />g) Sexual harassment7. <br /><br />4. In order to sue, Kalpana would have to prove exactly what was said, and to who, and show how those statements caused her lack of work. If she is able to establish these basics, Kalpana may have a claim against Prakash as well as Geffel Stace; in relative terms, the claim against Prakash may be easier to prove.<br />5. As an example, to establish defamation, Kalpana would have to prove the following four elements in a Court: a) False statement: This may require some effort to prove. Interestingly, it is this element that employers try to avoid by only giving out name, dates of service and designation in any reference letter8!<br /><br /> b) Identify claimant: the claimant should be identified in the defamatory statement. The content must be clearly addressing a particular person for her to be defamed. A general statement like: "All women are emotional and imbalanced", is too broad a classification and hence no particular woman may consider it to be personally attributed to her. Therefore, such statements are not defamation. Kalpana would need to be clearly identified by Prakash in relation to this comment. c) Publication/Communication: There must be a publication of the defamatory statement in either oral or written form. Unless the content is published - made available to someone other than the claimant, there can be no defamation. 'Publication' in legal terms simply means 'communication to a third party.' Prakash satisfies this element by simply speaking about her to Johri. Under a criminal suit9, intention to defame is an important element10. In the absence of intention, the knowledge that the communication was likely to defame or is defamatory becomes essential. All this is further subject to the normal standard of proof in criminal cases: That is, beyond reasonable doubt! <br /><br />d) Harms reputation: The presence of defamatory content is necessary. Defamatory content is defined as one calculated to injure the reputation of another by exposing him/her to hatred, contempt or ridicule11. This element may be easy for Kalpana to prove; she just needs to show that she did not get the job she applied for at Cyben. <br /><br />6. Finally, Prakash has a right to respond to requests for references, but no right to contact prospective or current employers to intentionally interfere. Prakash may well be surprised by Kalpana's anger on something she told a friend over a casual meeting! To everyone's knowledge, there was no formal request for a referral and no formal response thereto. <br /><br />If Kalpana determines that Prakash's negative inputs are not unlawful but are simply restricting her ability to secure future employment, the situation may typically be addressed through the transmittal of a Cease & Desist Notice. Onil Das can issue the same to Prakash, telling Prakash to 'cease and desist' from her bad conduct, or else suffer the initiation of a lawsuit. The letter would alert Prakash of the consequences of the negative reference. Since most employers prohibit providing any negative reference to ex-employees, Prakash would be concerned that this notice does not reach the management of Geffel Stace Bank. Be it realiisation of the consequence of her casual statements, and the possible consequences of her management becoming aware of the notice may prompt Prakash to not offer - out of self-interest - any negative commentary again.<br /><br />There is one potential trap here that Kalpana should avoid. Ideally, the Case & Desist Notice must not sound offensive to other prospective employers, who may view it as an attempt to hide the truth. It should be strong and specific, yet respectful. It is best not to mention the false things Prakash may have allegedly said, and avoid naming witnesses. It is possible that this notice might one day be shown by Prakash to prospective employers as evidence that Kalpana is someone who 'Likes to threaten, manipulates the truth, and hides behind lawyers'. It is with this knowledge that the Notice may be drafted. <br /><br /><strong>After sending the Cease & Desist</strong><br />Notice, Kalpana may wait for a week or two. An irreverant way to test the impact would be to ask a friend to call Prakash, or write to her, and ask for a job reference for Kalpana. She may do this with a certain periodicity subsequently too. If anything negative is said, she could report it to Mr Das,<br />who could then send a second, more menacing notice. If it doesn't stop, litigation is an option12. Once Prakash finds herself in court, starts spending legal fees, she may develop a new sense of self-control. <br /><br />Does Kalpana have any other options? Yes. She can be proactive and prepare a positive reference documentation set. Ideally containing laudatory work and character references from former employers, customers, industry leaders, and professors. Where would Geffel Stace Bank (and Prakash) fit into this? Geffel Stace Bank would need to appear on her resume. If she still believes she may be bad-mouthed, she should consider preparing a clarificatory letter, herself. <br /><br /><em>To Whomsoever It May Concern <br />One of my former managers, Sundari Prakash of Geffel Stace Bank, was upset with me that I chose to have a child after spending 8 years with Geffel Stace Bank. For that reason, Ms. Prakash may remain upset with me to this day. Sometimes former colleagues hold on to negative feelings, and there is little that can be done about it. All I can assure you is that I provided the same unstinting performance for Geffel Stace Bank that I did for all of my other former employers. I have enclosed herewith contact information of three clients I served during my tenure with Geffel Stace Bank. You will appreciated that clients are the ultimate arbiters of performance, and I invite you to contact them; each has offered to serve as a reference. I can understand if you wish to speak with Sundari Prakash directly; and for that purpose I herewith provide her contact information.</em><br /><br />Kalpana is in a difficult spot, but not an impossible one. Kalpana must deal with Prakash as she would deal with all other obstacles, road bumps and frustrations in her life: with perspective, professionalism and planning. The odds are that, sooner or later, Prakash will find another target for her insecurities and Kalpana her equilibrium. Again, we actually have no clue how Prakash would react to a formal request for a reference for Kalpana. We have entirely based our analysis on an informal conversation between two friends in a casual environment. <br /><br /><strong>Footnote references</strong><br />1) A fine balance is required between protecting freedom of speech, fair comment and criticism on the one hand and transgression into malicious defamation of a person for oblique purposes on the other.<br /><br />2) For the purpose of criminal defamation, 'reasonable restrictions' are defined in Section 499 of the Indian Penal Code. This section defines Defamation and provides valid exceptions when a statement is not considered to be Defamation.<br /><br />3) As a general rule, it is not Defamation to impute anything, which is true, concerning any person. In India, truth is an absolute defense in Civil Cases, however; in Criminal cases, the true statement must also be an imputation for public good. Therefore, irrespective of the intention of an individual, no Defamation suit may be brought against someone if he imputes something true (and for public good).<br /><br />4) In case of defamatory opinions, the exception of fair comment is generally accepted. The communication has to be clearly expressed as an opinion. As a defence against Defamation, such opinion should be one that a lay person is capable of holding, even if the reasoning is illogical. <br /><br />5) 'Last In First Out', as a concept of 'letting go' of the last employee hired, in a defined category of employees, in the first instance, when the category is undergoing a reduction in workforce. <br /><br />6) Libel and slander, both forms of defamation, follow English common law principles. Indian jurisprudence does not treat them as distinct from each other. The defamed has a remedy both in civil law for damages and in criminal law for punishment. India in many ways provides additional protection to the defamed, unlike any other country of the world. Defamation as a crime is almost non-existent elsewhere. Tort law, which sums up the civil law for defamation, is not codified as legislation and depends on judge-made law. The Indian Penal Code (Section 499) provides the criminal law for defamation. <br /><br />7) Probably will not work, as Indian law only recognises one form of sexual harassment, which is where a male sexually harasses a female. <br /><br />8) Many employers will release only basic information when contacted for a reference. They usually confirm employment dates and job responsibilities, salary history, and might include information about whether the employee was dismissed or chose to leave on his/her own. Even for employees who may not be model employees, most employers do not give specific details about conduct. Most employers act responsibly and (even if a former employee was not ideal) they provide respectful (or at least neutral) references. <br /><br />9) Under a civil suit, once all these conditions are satisfied, a Defamation suit subsists, and the defendant has to plead a privilege or take up a defense. If the defendant fails to do so satisfactorily, the Defamation suit is successful.<br /><br />10) Indian Supreme Court in the 'Auto Shanker' case (R. Rajagopal versus State of Tamil Nadu, 1994) noted expositions by the U.S. Supreme Court and set out broad principles on which libel and privacy law may evolve for India. The test of proving malice by the defamed has now been incorporated into Indian jurisprudence. In reality, Defamation cases in India usually lose relevance, as most are either settled or get delayed beyond the call of reason. In this matter, the Indian Supreme Court referred tothe celebrated 1964 case of New York Times v. Sullivan, of the U.S. Supreme Court. 11) An imputation is said to harm a person's reputation:<br /><br />a) if it directly or indirectly, lowers, in the estimation of others, i) the moral or intellectual character of that person, or ii) the character of that person in respect of his caste or calling, or iii) the credit of the person, or <br />b) if it causes it to be believed that the body of that person is in a loathsome state, or in a state generally considered as disgraceful.<br /><br />12) The punishment for Defamation is a simple imprisonment for up to 2years or with fine or with both.<br /> <em><br />The writer is a partner with J. Sagar Associates</em><br /><br />(A version of this was published in Businessworld issue dated 29 June 2015)</div>
