Coventry University v Mian

An employer breaches its duty when deciding whether to commence disciplinary proceedings only if the decision falls outside the range of reasonable responses open to an employer on an objective and contemporaneous assessment. The assessment includes evidence then available and evidence that a non-negligent investigation would have obtained. It must not be made with hindsight.

The court must distinguish between whether misconduct is ultimately proved and whether there were reasonable grounds to require the employee to answer a disciplinary charge. A decision may be wrong without being negligent. Defects alleged in an investigation matter only if they could materially have changed the evidential position and the reasonableness of commencing proceedings. An employee’s vulnerability may affect the manner of an investigation or pastoral support, but does not alter the threshold for deciding whether a charge is reasonably open.

Coventry University appealed against HH Judge Barrie’s determination that it was liable in negligence to Dr Rubina Mian, a senior lecturer, for psychiatric injury caused by commencing disciplinary proceedings.

The proceedings concerned allegedly false and misleading employment references for a former colleague. One reference purported to have been signed by Dr Mian and three similar draft references were found on her work computer. Dr Mian denied complicity and explained that the former colleague had prepared and retained the drafts. A disciplinary assessor later dismissed the allegations.

The trial judge held that the University should have made further enquiries before starting disciplinary proceedings, although he rejected a separate allegation of undue delay. The sole issue on appeal was whether the University had breached its duty of care by deciding to institute the proceedings.

1. Appeal allowed; claim dismissed. Sharp LJ held that the judge had failed to apply the agreed and correct test. The question was whether, on an objective assessment without hindsight, the decision to commence disciplinary proceedings lay outside the range of reasonable decisions open to an employer. The inquiry concerned the evidence available at the time, together with evidence that a non-negligent investigation would or should have produced.

2. The University had ample concrete evidence from which a reasonable employer could conclude that Dr Mian had a case to answer for gross misconduct. It included the three false references in her name on her computer, their similarities to the reference sent to Greenwich, and the implausibility of the alternative explanation that Dr Javed had intercepted a request from her pigeonhole without her knowledge. Her account raised questions of credibility that could properly be resolved at a disciplinary hearing.

3. The judge impermissibly assessed the overall merits of the allegation and accepted Dr Mian’s trial account, rather than asking whether there were reasonable grounds to suspect misconduct when the proceedings began. He thereby conflated the truth of the allegation with the reasonableness of bringing it. Evidence favouring Dr Mian’s account was for the disciplinary process and did not make the decision to commence proceedings negligent.

4. Even assuming further enquiries or a differently conducted interview were required, no new evidence of substance would have emerged to alter the objective reasonableness of the decision. The alleged defects were therefore misplaced or immaterial. Vulnerability could affect the conduct of an investigation or the pastoral support given, but could not add a gloss to the threshold for deciding whether a gross-misconduct charge was open.

5. Beatson LJ agreed with the disposition, while observing that the University should review its investigative procedures and guidance. Sullivan LJ also agreed with Sharp LJ’s reasons.

• Court of Appeal (Civil Division): Allowed the University’s appeal and dismissed Dr Mian’s negligence claim: [2014] EWCA Civ 1275.
• Birmingham Civil Justice Centre (HH Judge Barrie): Held the University liable in negligence for commencing disciplinary proceedings; that determination was set aside.