Employer did not Breach Duty of Care by Instigating Disciplinary Proceedings

An employer did not breach its duty of care when it brought disciplinary proceedings against an employee.  

In Coventry University v Mian, M was employed as a senior lecturer. One of her colleagues, J, was made redundant and took up a post with Greenwich University. Subsequently, Greenwich queried a “large disconnect” between the reference provided by Coventry and J’s performance. The reference, on University headed notepaper, purported to be written and signed by M. It contained a number of important inaccuracies and significantly overstated J’s qualities and qualifications. 

An investigation took place into how the reference had been provided. M was interviewed. She denied writing the reference, saying that she had agreed to be his referee and he had provided her with references he would like her to produce. She had saved these to her computer but had refused to use them. She had prepared shorter references for him, along the lines she had prepared for others, but had deleted the ones relating to him (but not those relating to others). 

It was decided that M had a case to answer for gross misconduct. She was invited to a disciplinary hearing to consider the allegation that she had been complicit with J in the preparation of false and misleading references. She was then signed off work sick and the hearing eventually proceeded in her absence, with union representation. In the event, the allegations against M were dismissed.

M did not return to work for the University and left to take up employment elsewhere. She brought legal proceedings, arguing that in commencing disciplinary proceedings without undertaking further enquiries, the University had been in breach of contract and/or negligent, causing her psychiatric injury. The Judge upheld her claim, finding that the employer had breached its duty of care and was liable in negligence. Further enquiries would have established that there was an insufficient basis for disciplinary proceedings. 

The University appealed and the Court of Appeal overturned the Judge’s decision. The Judge had taken the wrong approach by considering whether the allegations were true, rather than whether there were reasonable grounds to suspect that they were. He should have asked whether the decision to instigate disciplinary proceedings had been “unreasonable” in the sense that it had been outside the range of reasonable decisions open to an employer in the circumstances. This required an objective assessment, not one made with the benefit of hindsight. 

A reasonable employer could have concluded that there was a case to answer on the basis of the evidence available at the time disciplinary proceedings were instigated. This included the fact that:

• three false references had been found on M’s computer;
• if M had no involvement in the production of these references, J must have intercepted the reference request from her pigeon hole in a manned office without her knowledge (something considered implausible); and 
• M’s suggestion that she was intimidated by J was not borne out by the fact that she asked him to be an examiner for one of her PhD students, nor by her agreement to be his referee. In addition she had not previously raised any concerns about intimidation by J. 

Employers need to be aware that decisions to instigate disciplinary proceedings can give rise to claims for breach of the implied term of trust and confidence or, as in this case, a claim for personal injury based in negligence. Disciplinary allegations need to be investigated thoroughly before any decision is taken to commence disciplinary proceedings.  The more serious the allegation, the more thorough the investigation needs to be. Make sure that documentary evidence is obtained and witnesses interviewed before putting the allegations to the employee concerned. Make sure that the allegations are explained clearly to the employee, seek their explanation and make sure that any issues which arise are followed up. In addition, the decision whether to instigate disciplinary proceedings should not be taken by the person who conducted the investigation.