Labour & European Law Review Weekly Issue 396 19 November 2014
Before deciding whether to start disciplinary proceedings, employers have to carry out a reasonable investigation within the band of reasonable decisions open to them and which is reasonable in all the circumstances. In Coventry University v Mian, the Court of Appeal held that the trial judge had failed to apply the correct test which was to consider whether the university’s decision to instigate disciplinary proceedings was unreasonable.
In March 2007, Coventry University received a complaint from Greenwich University about a misleading reference for one of their employees, Dr Javed, that had purportedly been written in 2006 by Dr Mian, a senior lecturer at Coventry.
The university started an investigation which involved searching Dr Mian’s computer without her knowledge. The search revealed a number of draft references on her computer for Dr Javed, all of which were very similar to the Greenwich reference. They contained the same inaccuracies and were misleading.
Dr Mian was invited to a preliminary meeting where she admitted that she had agreed to be a referee for Dr Javed but denied writing the reference. She explained that Dr Javed had drafted the references which were saved on her computer, but that she had refused to use these versions because they were inaccurate and misleading, preferring instead to write shorter references which she had deleted from her computer. She said she felt intimidated by Dr Javed but had not raised this with her line manager at the time.
She was invited to a formal disciplinary hearing in April 2007 but went off sick a few days before the hearing was due to take place. The hearing finally went ahead in November in her absence, and the allegations were dismissed. Dr Mian did not return to work and instead found a job elsewhere. She successfully brought claims for breach of contract and/or negligence causing psychiatric injury on the basis that the university should have undertaken a more extensive investigation before it started disciplinary proceedings against her.
Grounds of appeal
The university appealed, arguing that the judge had failed to apply the correct test which was whether, in all the circumstances, the decision to start disciplinary proceedings was unreasonable.
Decision by Court of Appeal
The Court of Appeal confirmed that the test to be applied was whether the decision to instigate disciplinary proceedings was “unreasonable”. In other words, whether it was outside the range of reasonable decisions open to an employer in the circumstances. This required an objective assessment on the basis of the evidence available to the university at the time.
The evidence in this case included the fact that the university had found three false references on Dr Mian’s computer, prompting the Court to remark that if she had not written them then Dr Javed must have somehow intercepted the request from Greenwich from her pigeon hole. And although she gave evidence that she had been asked by Dr Javed to lie on his behalf, she had not mentioned this to anyone else.
Instead of objectively assessing that evidence, the trial judge had elided the question as to whether the allegations made in the disciplinary proceedings were true with whether the decision to instigate disciplinary proceedings was outside the range of reasonable decisions open to the employer in the circumstances.
The Court therefore allowed the appeal, concluding that the criticisms made by the judge of the investigative process undertaken by the university were either misplaced or immaterial. He failed to apply the proper test for breach of duty to the facts and his conclusion that the university was in breach of its duty of care was plainly wrong on the facts.
Although the university won its appeal the case is a timely reminder of the obligations on employers to carry out thorough investigations before starting disciplinary proceedings.