LEGAL CORNER: Employer not negligent in commencing disciplinary proceedings

31st Oct 2014

The Court of Appeal have just released their decision in the case of Coventry University v Dr Rubina Mian [2014] EWCA Civ 1275.

Dr Mian was a senior lecturer at Coventry. Her superiors received a complaint from the University of Greenwich about a reference provided to them in respect of one of Dr Mian’s former colleagues, Dr Javed. The reference had purportedly been written by Dr Mian. A search was therefore conducted of her computer; three files were found with slightly differing references for Dr Javed, which were very similar to the one received by Greenwich. Dr Mian was therefore invited to an investigatory interview.

Her case was that Dr Javed had asked her to be his referee and had sent her his suggested references, which she had saved onto her computer (the files that had been found). However, she had not felt that these references were accurate, and when asked by an institution to provide them with a reference, she had written a much shorter and, in her view, more accurate reference and sent it on. However, she could not recall which institution she had sent the reference too, nor had she saved a copy of this reference, so was unable to produce it. She denied sending the reference that had been received by Greenwich, and surmised that Dr Javed must have intercepted the written request from Greenwich which would have been put in her pigeon hole, and responded to it without her knowledge or consent. She also asserted that she would not consider herself to be on friendly terms with Dr Javed, and in fact found him difficult. However, she had never complained about him to her superiors and in fact their view was that Dr Mian and Dr Javed got on well.

The investigator was not satisfied with the explanation provided by Dr Mian and considered that disciplinary charges should be brought against her for complicity with Dr Javed in the preparation of false references. After further investigation and having heard from Dr Mian herself, the independent assessor conducting the disciplinary hearing decided that the charge was not substantiated, although he made clear that it was not an easy case. Dr Mian had been signed off sick just prior to the disciplinary hearing, and did not actually return to Coventry; she subsequently obtained employment elsewhere.

Dr Mian then brought civil proceedings against Coventry alleging that they had acted in breach of contract and/or negligently so as to cause her psychiatric injury, in commencing disciplinary proceedings against her without first undertaking further enquiries.

The judge accepted her argument that had those investigations been undertaken before the decision was made to commence disciplinary action rather than after, then they would not have been instigated as it would have been established that there was an insufficient basis for them.

Coventry appealed to the Court of Appeal. The Court reiterated that the correct test in such a case of negligence was whether a reasonable employer would have started disciplinary proceedings in those circumstances. They acknowledged that there was clearly evidence at the time when disciplinary proceedings were commenced that suggested that there might have been wrongdoing on Dr Mian’s part. The key to the case was Dr Mian’s credibility, and ultimately the assessor decided that he believed her account. She was also supported to a certain extent in her depiction of Dr Javed by another colleague who was interviewed as part of the disciplinary process.

The Court of Appeal therefore found that the judge had erred as it appeared that he had considered the case based on the overall findings of the disciplinary panel rather than what was known when the process was instituted. They accepted Coventry’ argument that their actions were not unreasonable in the circumstances, and the judge’s finding was overturned.

This case reiterates the argument that an employer needs to ensure that when it commences disciplinary proceedings against an employee, there are clearly reasonable grounds for doing so, usually based on there being sufficient evidence to suggest that there is a case to answer. It is immaterial whether, at the conclusion of the process, the alleged misconduct is found to have occurred or not. But where an employer does not have sufficient grounds for pursuing an allegation, they leave themselves open to a challenge of negligence.

Safia Tharoo, Barrister, 42 Bedford Row, London

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