When is an employer liable in negligence for bringing disciplinary proceedings?

The claimant, Dr Mian, was a senior lecturer at the defendant university.

The claimant in March 2007 was accused of providing a misleading and inaccurate employment reference for an ex-colleague that the new employer described as having a “large disconnect” between the ex-colleague’s job performance and some of the key assertions in the reference letter.

The defendant obtained a copy of the reference from the new employer which was also a university. The reference purported to be written by the claimant and signed by her. It was over three pages long and very detailed. At trial there was no dispute that this reference contained many important inaccuracies and materially overstated the ex-colleague’s qualities and qualifications.

The defendant investigated what had happened and concluded that a false and misleading reference had been given to another university. The defendant university was understandably concerned about the reputational damage that had been caused by this act and its potential liability for any losses suffered by the new employer incurred as a result of the reliance placed on the reference.

The investigation looked at how the reference request had been made and received. It had been delivered to a different building to where the claimant’s ex-colleague had worked. At trial this was an important fact which helped the defendant university argue that it would have been very difficult for the ex-colleague to have intercepted the reference to avoid the claimant from receiving it.

The claimant’s line manager said that in her opinion the signature at the bottom of the reference was not the claimant’s.

However, in consultation with HR and in line with the university’s policy a search was made of the claimant’s ‘H’ drive on her computer. This was done without the claimant’s knowledge because HR judged (understandably) that there was a risk that relevant material might be deleted.

The search identified three other draft references on the ‘H’ drive but dated in 2004 and addressed to three different universities. There were “large chunks” that were similar to the disputed references.

The claimant was invited by letter dated 20 March 2007 to attend a preliminary meeting to discuss the investigation. At this meeting which was held on 27 March 2007 the claimant denied writing any of the references, including the three found on her ‘H’ drive. The claimant said that her ex-colleague had asked her to write the references and he had sent the drafts to her but she had not used them because she thought they were misleading and inaccurate. Instead the claimant said she had written and sent short references for him. The claimant explained that these references had been deleted from her computer. This seemed to be an unusual step because there were upwards of 30 other references that had been sent and retained in relation to other colleagues. The claimant’s explanation was that she had deleted the references “because he was so irritating”.

The claimant said she had kept the longer references because she felt intimated and had allowed the ex-colleague, whilst he was still at work at the defendant’s university, to have access to her PC.

The investigation continued into a number of issues including the working relationship between the claimant and her now ex-colleague. There was no evidence to support the claimant’s contention that she had been intimidated by him. In fact the claimant had asked her now ex-colleague to return to the university to act as an examiner for one of her PhD students. This behaviour was judged to be incompatible with her evidence that she had been intimidated.

Ultimately the disciplinary investigator concluded that the claimant should face disciplinary allegations of gross misconduct. The allegations centred on the claimant being “complicit in providing a colleague with a false reference”. It is important to note that the allegation did not contend the claimant had written the disputed reference but that she had “been complicit” in its provision.

A disciplinary hearing was originally arranged for 18 April 2007. However, on 12 April 2007 the claimant submitted a sickness certificate and went on authorised sick leave. This delayed the disciplinary hearing.

The disciplinary hearing took place over a period of two days. The claimant did not attend because she was not well enough. She submitted, however, a written submission and was represented at the hearing by her trade union representative. The claimant admitted to being “guilty of stupidity and naivety” but not complicity.

The chairman of the disciplinary hearing said he had found the case “not easy” but went on to dismiss the allegations against the claimant.

The claimant did not return to work because of her ill health and ultimately resigned and subsequently found new employment elsewhere.

At trial it was accepted by the claimant that the disciplinary hearing was commenced and pursued with proper motives and in good faith. The claimant’s pleaded case, however, was that the defendant university had breached its duty of care to her by pursuing disciplinary proceedings without a proper basis for doing so and that this had caused her to suffer from mental ill health.

The claimant argued that in the alternative the university had acted in breach of contract. She argued that the breach of contract and/or negligence had caused her psychiatric injury in commencing the disciplinary proceedings without undertaking further enquiries. It was common ground that the university’s duties under the implied term of mutual trust and confidence at common law and in contract were the same.

In the High Court the judge upheld the claimant’s claim concluding that if further enquiries had been undertaken then proceedings would not have been instigated as it would have been established that there was an insufficient basis for them. The defendant university appealed to the Court of Appeal as it believed the High Court judge had substituted his own decision for that of the defendant university and therefore had wrongly applied the relevant test.

The Court of Appeal upheld the appeal and dismissed the High Court decision. It said the High Court judge had erred in holding that the university had breached its duty to the claimant. The Court of Appeal said that the correct test the judge should have applied to the facts to decide whether there had been a breach of duty was whether the decision to instigate disciplinary proceedings had been “unreasonable in the sense that it had been outside the range of reasonable decisions open to an employer in the circumstances. This was an objective assessment and one which should not be made with the benefit of hindsight.

The Court of Appeal agreed that objectively, a reasonable employer could have concluded in the circumstances, that there was a case for the claimant to answer on a charge of gross misconduct. The court was happy that the recommendation for a serious disciplinary charge to be brought was entirely reasonable, indeed almost inevitable.

The defendant university’s case was well founded on the basis of the “concrete evidence available at the time proceedings were instigated.” For example the Court of Appeal said it had in mind the finding of three false references for the ex-colleague in the claimant’s name and saved on her computer on three separate occasions and the fact that if the claimant had no involvement in the production of the disputed reference, then the ex-colleague must have contrived somehow to intercept the reference request from the claimant’s pigeon hole in a manned office without her knowledge – an occurrence that everyone accepted as “implausible”.

The claimant  had not helped herself because she had given less than satisfactory explanations of her involvement at the investigatory stage. At the time she did not mention any matters that might have reasonably been raised if she felt that her colleague was intimidating her and putting her under undue pressure in relation to the provision of employment references for him.

The claimant was a senior academic who would have understood the significance of the importance of making sure that employment references were true and accurate and misleading. The Court of Appeal readily concluded that it was entirely proper for the university to conclude that the issue had to be determined before a disciplinary hearing especially given “some of the peculiar features of the case”. The purpose of disciplinary hearing is for the evidence on both sides to be considered and challenged so that a “determination made as to rights and wrongs of the case by an assessor”. The Court of Appeal noted that the disciplinary panel chair report that he had found the case “not easy” and this helped to show that the case against the claimant had not been dismissed out of hand. Ultimately the disciplinary hearing concluded that the claimant’s explanations for the presence of the false references on her computer should be accepted on a balance of probabilities.

The claimant criticised the investigatory process undertaken by the defendant university. The Court of Appeal concluded that these criticisms although valid were either misplaced or immaterial and were properly considered at the disciplinary hearing.

The Court of Appeal noted that there were many points that the claimant argued should have been taken into consideration before deciding to proceed with a full disciplinary hearing against her. The Court said that these were perfectly legitimate points and it was the function of the disciplinary proceedings for each point to be considered. None of the points was a “game changer” which may have prompted the university to conclude that no further action was justified. This was not such a case. Clearly this was a case where the university had identified clear and compelling evidence to justify the claimant being called to a disciplinary hearing.

The outcome of disciplinary proceedings is normally a feature of an unfair dismissal or discrimination claim in the employment tribunal. This case is important because it clarifies the approach to be taken in relation to a claim of negligence and/or breach of contract by an employee who suffers ill health arising from disciplinary proceedings. Although in this case the defendant university was found not liable it highlights the importance of making sure that each disciplinary investigation is undertaken in a manner which is “reasonable in all the circumstances” judged objectively by reference to the “band of reasonable responses”.