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Duty of care in instigating disciplinary proceedings

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 Thanks to Dr John McMullen of Wrigleys Solicitors LLP for preparing this case summary

Thanks to Laurie Anstis of Boyes Turner, who is standing in for Daniel Barnett this month.

Can an employer be liable to an employee for breach of contract and/or negligence in initiating disciplinary proceedings without undertaking due enquiry?

Not on the facts of Coventry University v Mian held the Court of Appeal.

In this case Dr Mian was a senior lecturer employed by Coventry University. She was alleged to have written a reference about Dr Javed, her former colleague, for the benefit of Greenwich University. The reference was misleading and inaccurate and overstated the colleague's qualities and qualifications.

Dr Mian denied sending the reference in question. But a search of her computer showed drafts which were very similar. Dr Mian's case was that she was guilty of stupidity and naivety but not complicity. Dr Javed had sent Dr Mian draft references (containing the misleading information), which she had saved into her "H" drive. She had sent a shorter reference, she said, but had not saved it.

Soon after Dr Mian submitted a sickness certificate and the disciplinary hearing went ahead in her absence. At the end of the day the University dismissed the allegations against Dr Mian. Dr Mian did not return to work and she brought proceedings alleging breach of contract and/or negligence leading to personal injury. The trial Judge held in her favour.

In the Court of Appeal it was held that the Judge had identified the correct test to apply to the decision whether to commence disciplinary proceedings. This was whether the decision was "unreasonable" in the sense that it was outside the range of reasonable decisions open to an employer in the circumstances. This required an objective assessment and one that was not to be made with the benefit of hindsight.

Here the Judge was misled in eliding the question of whether it was reasonable of the University to institute disciplinary proceedings and whether, in the end, the allegations made against Dr Mian were true. The decision of the trial Judge was reversed and the University was not in breach of its duty of care.