Employers' duty of care towards their employees applies at all stages of the employment relationship, and can particularly come into play in the context of disciplinary action. Jodie Sinclair looks at a case where the Court of Appeal considered whether an employer had breached its duty of care to an employee by instigating disciplinary proceedings, after an initial investigation appeared to show that there was a case to answer. Helpfully, the Court of Appeal has clarified that an employer might be wrong about their concerns, without being negligent.

The background

A disciplinary investigation must be undertaken in a manner which is "reasonable in all the circumstances", judged objectively by reference to the "band of reasonable responses". What this means in practice is that an employer will need to investigate sufficiently to ensure that the substance of the allegations is clear, in order that these can be put to the employee in sufficient detail to enable a meaningful response. The requirement to comply with the 'band of reasonable responses' applies to all stages of the investigation. Furthermore, employers owe a duty of care to employees and any failure to comply with that duty, which results in loss or injury (including psychiatric injury) can give rise to a cause of action against the employer.

In Coventry University v Mian, an employee argued that her employer had breached its duty of care to her by initiating disciplinary proceedings without undertaking a sufficient initial investigation.

The facts

The claimant, Dr Mian, was employed by Coventry University as a senior lecturer.

One of Dr Mian's colleagues, Dr Javed, left Coventry University in 2006 to take up a post at Greenwich University.

In 2007, Greenwich University contacted Coventry University, expressing concern about a "large disconnect" between statements made in Dr Javed's reference and his performance. The reference, on Coventry University headed notepaper, was apparently from  Dr Mian and signed by her. It contained her direct dial telephone number and was over three pages long. However, the reference contained many important inaccuracies, and significantly overstated Dr Javed's qualities and qualifications.

Greenwich University confirmed to Coventry University that it had written to Dr Mian, at her workplace, using the correct address. The request would have been placed in Dr Mian's pigeonhole in the administrative office of the building in which she worked; a different building from that in which Dr Javed worked at that time.

Dr Mian's line manager was shown the reference and said that it was unlikely that the signature at the bottom of the reference was Dr Mian's.

Dr Mian's computer H drive was searched. This revealed three other draft references in Dr Mian's name for Dr Javed, all of which were very similar to the reference supplied to Greenwich University.

Dr Mian was invited to a preliminary meeting, having been given a copy of the Greenwich reference in advance, and was told that she could be accompanied by a union representative or colleague. At the meeting Dr Mian denied writing the reference. She said that she had agreed to be a referee for Dr Javed and that he had sent her the references he would like her to produce, which she had saved onto her H drive. These contained false, misleading and inaccurate statements which she had refused to use. She had written short references for him instead but had deleted these from her computer. She had retained the longer references prepared by Dr Javed, to keep him quiet. She said she felt intimidated by Dr Javed, but had not raised this with her line manager.

Following further enquiries, which suggested that she had a good working relationship with Dr Javed, the University decided that there was a case to answer for gross misconduct. The disciplinary allegation was that Dr Mian had been complicit with Dr Javed in the preparation of false and misleading employment references (but not that she had actually supplied a misleading reference to Greenwich University herself).

Dr Mian was invited to a disciplinary hearing, but was then signed off sick. A two day hearing went ahead in her absence and the allegations were dismissed.

Dr Mian did not return to work for Coventry University but left to take up employment elsewhere. She brought proceedings arguing that in commencing disciplinary proceedings without undertaking further enquiries, the University had been in breach of contract and/or negligent so as to cause her psychiatric injury. She argued that, had such enquiries been undertaken, the disciplinary process would have been avoided altogether.

The trial judge upheld Dr Mian's claim, and Coventry University appealed.

The decision

The Court of Appeal (CA) upheld the appeal and said the way in which Coventry University had conducted its investigation and subsequent disciplinary hearing was not in breach of its duty of care / contractual obligations towards Dr Mian.

The CA said the judge had confused the question of whether the allegations made in the disciplinary proceedings were true with whether there were reasonable grounds to suspect that they were true; and ended up substituting his own judgment for that of the University.

What should the judge have considered? He should have looked at whether the decision to instigate disciplinary proceedings had been "unreasonable", in the sense that no reasonable employer would have commenced disciplinary proceedings in the same circumstances.

The CA highlighted that the University might have decided to take Dr Mian's explanation at face value and taken the matter no further, given her otherwise excellent reputation; but the fact that it chose to pursue the allegations remained reasonable. The evidence on both sides could then be considered at the disciplinary hearing.

The CA accepted the University's case that, objectively, a reasonable employer could have concluded that there was a case for Dr Mian to answer on a charge of gross misconduct; and that their view was well-founded on the basis of the evidence available when the disciplinary investigation began.

What does this mean for me?

Although this case is fairly fact-specific, it illustrates that employers are able to commence disciplinary proceedings on the basis of preliminary facts which show a case to answer, provided they do so reasonably. Formal disciplinary proceedings are likely to be stressful for employees but, if the employee does become unwell, then the employer is unlikely to be liable as long as they can show that they acted within the 'band of reasonable responses'. This gives employers quite a wide discretion: as the CA observed, different employers may come to different conclusions and may be 'wrong' without being negligent. It is, however, interesting to note that one of the CA judges commented that, although the University was not liable to Dr Mian in damages, their procedures and investigative processes could be improved. This might have improved the management of the situation for Dr Mian and prevented the claim from arising at all. The CA also noted that the allegations were considered at length in the disciplinary hearing and were not dismissed out of hand. For example, her union representative had acknowledged that she had been "guilty of stupidity and naivety", although it was denied she was complicit. The result may have been different if there had been no evidence at the subsequent disciplinary hearing to support the allegations in respect of which the University had decided there was a case to answer.

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