Court of Appeal: employer not in breach of duty of care by beginning disciplinary proceedings

The court overturned the High Court's earlier decision in favour of Dr Mian, who was a senior lecturer at Coventry University, in her claim against her former employer. It found that the High Court judge had confused the question of whether the allegations made in the disciplinary proceedings were true with whether the decision to instigate the proceedings was one that no reasonable employer would have taken in the circumstances.

"The judge went wrong in my view, principally because … though he correctly set out the relevant test … he did not then apply it," said Lady Justice Sharp in the Court of Appeal's judgement. "Instead, in substance, he made an assessment of the overall merits, which was influenced so it seems to me by his explicit acceptance of Dr Mian's account in her evidence to him at the trial about the events in question, rather than considering whether it was reasonable to instigate those proceedings in the first place."

"As a result he elided the question whether the allegations made in the disciplinary proceedings were true with whether there were reasonable grounds to suspect that they were; and ended up substituting his own judgment for that of the university," she said.

Employment law requires a disciplinary investigation to be undertaken in a manner which is "reasonable in all the circumstances"; judged objectively by reference to the "band of reasonable responses" available to an employer. In her claim against the university, Dr Mian argued that by beginning the proceedings without carrying out a full investigation the university had been in breach of contract, or so negligent as to cause her psychiatric injury. The university ultimately dismissed the allegations against her, but she did not return to work there.

Dr Mian had been accused of providing a false and misleading employment reference for a former colleague. The reference had been provided on university letterhead and had allegedly been signed by Dr Mian. A search of Dr Mian's computer found draft references which contained similar misleading statements. However, she said that these had been sent to her as drafts by the former colleague, and that she had in fact sent a shorter reference which she did not save to her computer.

The test that the High Court judge should have applied to the facts of the case in order to decide whether there had been a breach of duty was "whether the decision to instigate the disciplinary proceedings was 'unreasonable' in the sense that it was outside the range of reasonable decisions open to an employer in the circumstances", the Court of Appeal said. This required an "objective" assessment of the facts, and was not a decision that was to be made "with the benefit of hindsight". In fact, the judge in this case correctly said that "reasonable people could reach different judgments on the same question" and it was possible to be 'wrong' about Dr Mian's culpability without being negligent.

"The fact that there was evidence which on the judge's analysis and interpretation of it supported or tended to support the account given by Dr Mian did not mean, with respect to the judge, that it was unreasonable or negligent of the university to instigate disciplinary proceedings against her," said Lady Justice Sharp.

"The implication of the judge's finding was that notwithstanding the strength of the arguments relied on by the university and the need for a 'serious investigation' as he described it, it was in breach of its duty of care to Dr Mian in pursuing the case against her, rather than abandoning it ... I do not think that was remotely the case here," she said.