We review the decision of the Court of Appeal in Coventry University v Mian [2014] EWCA Civ 1275.  The Court of Appeal was asked to determine a claim for breach of contract where the employee had suffered psychiatric injury and attributed this to disciplinary proceedings brought against her by her employer.  The employee alleged that her employer had been negligent in not conducting more detailed enquiries at the outset and that the decision to instigate disciplinary proceedings was a breach of the duty of mutual trust and confidence.

Facts

Greenwich University alerted Coventry University (the University) that a reference supplied in respect of one of its former employees, Dr Javed, was inaccurate.  The reference had been supplied on the University's headed paper but was not in the University’s usual format.  The reference was over three pages long and very detailed.  The reference had apparently been provided by Dr Mian, who was a senior lecturer at the University.  It appeared to be signed by her but there were doubts as to whether the signature was genuine.

The University started an investigation.  The investigating manager asked Dr Mian about the reference and also conducted a search of Dr Mian’s computer, which found three other references for Dr Javed that bore a strong resemblance to the inaccurate reference provided to Greenwich University.  In the investigating manager’s opinion, there were some sections of text from the inaccurate reference that could have been cut and pasted from the other references found on Dr Mian’s computer.

When asked about the references, Dr Mian said that she had agreed to give a reference for Dr Javed and that Dr Javed had provided her with draft references.  Dr Mian said that she had saved these references to her computer to appease Dr Javed but that when she had actually been asked for a reference she had supplied her own reference, which was shorter and in the University’s usual format.  There were many short references found on Dr Mian’s computer but none for Dr Javed.  Dr Mian’s explanation was that she did not keep robust records and that she regarded being asked to provide references as a “pain”.

Dr Mian also said that she had raised a complaint about Dr Javed’s behaviour towards her.  She said that she felt intimidated by him and that he often came into her office to use her computer and to make changes to the references.  Dr Mian described a difficult relationship with Dr Javed and said that she found him irritating.  However, Dr Mian had invited Dr Javed to act as an examiner for one of her PhD students after he had left the University and had made enquiries on his behalf as to whether the University would cover his travel expenses.  There was therefore evidence to suggest that the relationship between Dr Mian and Dr Javed was cordial.

The investigating manager recommended that the matter proceed to a disciplinary hearing for gross misconduct.  After taking advice from the University’s HR department, the Dean of the Faculty agreed with the investigating manager’s recommendation and Dr Mian was charged with an allegation that she had been complicit with Dr Javed in the preparation of a false reference.

Dr Mian was invited to a disciplinary hearing.  Two days later, she submitted a doctor’s note and was signed off sick.

At the disciplinary hearing, the disciplinary manager found that Dr Mian had been guilty of naivety but not complicity.  The disciplinary manager said that it was not an easy decision but concluded that the allegations should be dismissed.  Dr Mian therefore received no disciplinary sanction.  She did not return to work but left the University’s employment and subsequently found work elsewhere.

Dr Mian lodged a claim for breach of contract and alleged that the University had been negligent so as to cause her psychiatric injury for commencing disciplinary proceedings after an inadequate investigation.

High Court decision

The court upheld Dr Mian’s claim and found that if sufficient enquiries had been undertaken at the investigation stage, disciplinary proceedings would not have been instigated.  The judge paid particular attention to Dr Mian’s vulnerable mental state during the disciplinary process. The University appealed.

Court of Appeal decision

The Court of Appeal found that the judge’s conclusion was flawed.  The correct test was whether the decision to instigate disciplinary proceedings was unreasonable, in the sense that it was outside the range of reasonable decisions open to an employer in the same circumstances.

The Court of Appeal acknowledged that reasonable people could reach different decisions on the same question and considered that the University could have accepted Dr Mian’s explanation but it was not unreasonable for the matter to proceed to a disciplinary hearing.  The investigating manager had found some aspects of Dr Mian’s version of events implausible and this was not unreasonable, given some of the peculiar features of the case.  There was evidence available to the University at an early stage that supported the account given by Dr Mian but that did not mean it was negligent to instigate disciplinary proceedings.

The Court of Appeal also considered that the employee’s vulnerability could be relevant to the manner in which disciplinary proceedings are conducted and what pastoral support the employee should receive.  However, the Court of Appeal found that introducing the vulnerability of the employee into the test for whether the instigation of disciplinary proceedings was reasonable on the facts, was a misdirection of law.  The University’s appeal was therefore successful and the decision in favour of Dr Mian was overturned.

Comment

This decision is helpful to employers and should offer reassurance in situations where disciplinary proceedings for gross misconduct are pursued and result in a minor sanction or no sanction at all.  If this occurs, it does not necessarily mean that it was wrong to instigate the disciplinary proceedings in the first place and may even be a sign that the process is working effectively, as it would be surprising if every disciplinary hearing for gross misconduct resulted in a serious sanction or dismissal.

The purpose of an investigation is to discover the facts and whether there is a case to answer.  If there is a case to answer, the matter should proceed to a hearing to be determined.  If the onus on the investigating manager is too high then there is a risk that the investigating manager effectively becomes the disciplinary manager.

The Court of Appeal also noted that it was important for disciplinary processes not to become over-technical and legalistic.  It is important to bear in mind that it is not necessary, nor always helpful, to adopt a courtroom approach when dealing with internal disciplinary hearings.