WorkLife

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Disciplinary proceedings: don't skip the investigation

Employers can breathe a small sigh of relief at the Court of Appeal's decision in Coventry University v Mian [2014] EWCA Civ 1275.

The case looked at whether an employer was liable in negligence to a former employee in respect of its decision to instigate disciplinary proceedings against her.  The employee had claimed that her employer had breached its duty of care towards her by inviting her to a disciplinary hearing after an inadequate investigation and was seeking compensation in the region of £300,000 for work-related stress caused as a result.  On the facts, the Court of appeal decided no breach had occurred.

 

Facts of the Case

In brief, the facts of this case are as follows:

  • The employee, Dr Mian, was a senior lecturer employed by Coventry University.  She was alleged to have written a misleading and inaccurate reference for a former colleague, Dr Javed.  Dr Mian denied sending the reference in question.
  • On being contacted by the recipient of the reference, the University carried out an investigation into the allegation, including: obtaining information from the recipient of the reference; searching Dr Mian's computer drive for copies of the reference; meeting with Dr Mian; and speaking to Dr Mian's line manager about the reference and Dr Mian's relationship with Dr Javed.
  • The investigating manager concluded that Dr Mian had a case to answer for gross misconduct and recommended disciplinary proceedings to consider the allegation that Dr Mian had been complicit in preparation of a false and misleading reference.
  • Dr Mian was signed off sick soon after and the disciplinary hearing was eventually heard in her absence.  Dr Mian was in fact acquitted at the hearing, but Dr Mian did not return to work at the University.  She brought proceedings arguing that in commencing disciplinary proceedings without carrying out sufficient investigation the University had been negligent so as to cause her psychiatric injury.

 

Decision

The Judge at first instance upheld Dr Mian's claim, but the decision was overturned by the Court of Appeal.  In doing so, the Court emphasised the following points:

  • The correct test for whether an employer has breached its duty of care is whether a reasonable employer would have considered there was a reasonable basis on which to instigate disciplinary proceedings.  In other words, a breach would only have occurred if the decision had been outside the range of reasonable decisions open to an employer in the circumstances.  This requires an objective assessment.
  • The decision about whether an employer has breached its duty of care should be made on the basis of the evidence available at the time and such other evidence as would or should have been available had a proper investigation been carried out.  It should not  be made with the benefit of hindsight.
  • It is possible for reasonable employers to reach different decisions on the same issue, with the result that their decision might be "wrong" without breaching their duty of care to their employee.

 

Implications for employers

As ever with cases of this kind, the Court's decision turned on the specific facts, but given the extent of the investigation which appears to have been carried out in this case, it is a reassuring decision.

It is, however, a reminder to employers that their duty of care towards employees extends to the bringing of disciplinary proceedings against them and that a proper investigation is critical to any such proceedings.  This therefore seems a good time to reiterate some of the key principles for conducting investigations (for more details see our earlier blog on the topic):

  1. Refer to your company policy for the specific procedure which ought to be followed.
  2. The purpose of an investigation is to gather evidence and not to decide the case.
  3. The evidence should be sufficient to ensure that the substance of the allegations is clear and to allow the employee to understand and respond to the case against them.
  4. The more serious a matter is, the more thorough the investigation should be, particularly if dismissal is a potential outcome.
  5. Carry out the investigation without unreasonable delay.  Witnesses should be interviewed promptly before memories fade.
  6. Conduct the investigation impartially and search for evidence which supports the employee's case as well as disputes it.
  7. In most case, a different person should investigate the allegation than the person who conducts any disciplinary hearing.
  8. At the end of the investigation, the investigating officer should decide appropriate next steps.  This might include deciding that there is no case to answer or that the matter should proceed to a disciplinary hearing.  As the above case has highlighted, this decision should be made by reference to the "band of reasonable responses".

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