Two very different recent cases have both considered the developing area of what are the employer’s obligations to employees in disciplinary proceedings. We report on these and comment in particular on the effect for the NHS.
In Coventry University -v- Mian  EWCA Civ 1275, the Court of Appeal considered whether an employer had breached its duty of care to an employee by pursuing disciplinary proceedings without a proper basis for doing so. This was a personal injury claim which had succeeded in the High Court. However, the Court of Appeal held that the employer did not breach its duty of care to the employee by bringing disciplinary proceedings against her.
In the earlier case of Chakrabarty -v- Ipswich Hospital NHS Trust (which we reported on 24 September 2014), the court found that there is no freestanding and discrete implied contractual term of fairness accepting instead that ‘where the authorities contemplate questions of fairness, they do so in the context of the implied term of trust and confidence, or on a narrower basis by reference to an implied term that disciplinary processes will be conducted fairly, without unjustified delay’. Fairness is part of the fulfilment of the implied term of trust and confidence and, in the context of the disciplinary proceedings, these should be conducted fairly.
Dr Mian was employed by Coventry University (Coventry) as a senior lecturer. In 2007 Greenwich University contacted Coventry in relation to a reference it had received concerning Dr Javed who it had hired from Coventry and whose performance it found unsatisfactory.
The reference provided for Dr Javed was on Coventry notepaper and appeared to have been written by Dr Mian and signed by her. The reference was inaccurate and overstated Dr Javed’s qualities and qualifications.
A preliminary investigation was undertaken by Coventry; it discovered three other references on Dr Mian’s computer, all for Dr Javed. When interviewed, Dr Mian denied writing the reference sent to Greenwich. She stated that she had agreed to provide a reference for Dr Javed, who had provided draft references to her which he wanted her to send. Dr Mian said that she had refused to use these references on the basis that they contained inaccurate statements. Rather, she claimed that she had written a short reference for Dr Javed instead, but had not saved this to her computer. Dr Mian stated that she retained the inaccurate references on her computer to keep Dr Javed quiet.
Coventry commenced disciplinary proceedings against Dr Mian to further investigate and consider the allegation that she had been complicit in preparing false references for Dr Javed.
The disciplinary hearing was due to take place in April 2007, but was delayed for various reasons until November. Dr Mian was signed off sick from April 2007 and did not attend the disciplinary hearing - although she submitted written responses to the allegations and was represented at the hearing by her union representative. Dr Mian was acquitted at the disciplinary hearing and subsequently brought proceedings against Coventry alleging that it had been in breach of contract and/or negligent in commencing disciplinary proceedings without undertaking further enquiries and that this caused her psychiatric injury.
The judge in the High Court found in Dr Mian’s favour and agreed that a proper investigation had not been carried out. The judge found that the charges brought against Dr Mian were unjustified and that Coventry was in breach of contract. Coventry appealed.
The Court of Appeal allowed the appeal and dismissed the claim.
The Court of Appeal held that although the High Court had correctly identified the test to apply to the decision whether to commence disciplinary proceedings, it had not applied that test. The correct test is whether the decision was ‘unreasonable’ in the sense that it had been outside the range of reasonable decisions open to an employer in all of the circumstances. The Court of Appeal held that this requires an objective assessment and in the circumstances includes both the evidence which was available to the employer at the time and such other evidence as would or should have been available as the result of a (non negligently) conducted investigation. The High Court judge, at first instance, had assessed the overall merits; the Court of Appeal clarified that this was not the correct approach.
The Court of Appeal found that a reasonable employer could have concluded that there was a case for Dr Mian to answer on the basis of the evidence available at the time proceedings were instigated. Coventry, accordingly, was not in breach of its duty of care.
This case highlights the importance of an employer undertaking a thorough investigation before deciding whether to take disciplinary action.
Whether an employer has breached the claimant’s contract and/or been negligent in instigating disciplinary proceedings will be determined by whether the employer has been unreasonable in the sense that its decision to instigate disciplinary proceedings has been outside the range of reasonable decisions open to an employer in the circumstances. It is open for reasonable employers to reach different decisions as to whether to instigate disciplinary proceedings without breaching their duty to their employee.
This chimes with one important effect of the Chakrabarty judgment, in that whilst there is a recognised requirement of fairness in the conduct of disciplinary proceedings which requires employers to conduct disciplinary processes fairly (without unjustified delay), ‘fairness’ is not a freestanding or discrete right capable alone of resulting in a breach of contract.