Grounds for instigating disciplinary proceedings and misleading references

The Court of Appeal has given a judgment which deals with the question of the when it becomes right for an employer to commence disciplinary proceedings against an employee.

The case of Coventry University v Mian concerned a senior lecturer at the University who gave a reference for a colleague, at the request of that colleague. Dr Mian, a senior lecturer, gave a reference on the University's headed paper for a colleague, Dr Javed. The reference was sent to Greenwich University, purportedly signed by Dr Mian, in support of Dr Javed. The pro vice-chancellor of Greenwich University subsequently contacted Coventry University, expressing concern that the reference appeared to overstate the abilities of Dr Javed compared to his actual performance. In fact the reference exaggerated Dr Javed's qualifications and experience.  

Dr Mian attended a preliminary meeting at which she denied writing the reference. An investigation was carried out by Coventry University into the matter, which included a search of Dr Mian's computer hard drive. The hard drive revealed three drafts of the reference for Dr Javed, for three different posts. All were similar to the reference that Greenwich University had received. Dr Mian alleged that she had been intimidated by Dr Javed into giving a reference, that Dr Javed had in fact provided the draft references (which contained false information about Dr Javed) for her to send. She claimed to have refused to send the references which Dr Javed had supplied, and that she had sent a shorter reference instead, but claimed not to have saved it.

A decision was then made by Coventry University to instigate disciplinary proceedings against Dr Mian. In turn Dr Mian then submitted a sickness absence certificate. She failed to attend the disciplinary hearing. Nevertheless, the University went ahead with the disciplinary hearing in her absence. Ironically, the University rejected the allegations against Dr Mian, however she resigned from the University and brought a claim alleging that the University had acted in breach of contract and had acted negligently in failing to undertake further enquiries before starting disciplinary proceedings against her, such as would cause her psychiatric illness.

In the first instance Dr Mian won her case. The matter was then appealed to the Court of Appeal.

The Court of Appeal ruled that Coventry University had not acted in breach of contract, and had not acted in breach of any duty towards Dr Mian. The Court ruled that the proper test for the instigation of a disciplinary process was whether the decision to instigate the process was "unreasonable" in so much as whether it fell outside a reasonable range of decisions open to an employer in the circumstances. This test therefore requires an objective assessment, being one which is not to be made with the benefit of hindsight. The circumstances included the evidence that was available to Coventry University at the time it took that decision and, potentially,such additional evidence that would or should have been available as the result of a reasonable investigation. In the case itself the fact was that Coventry University had found three draft references on Dr Mian's computer hard drive, and Dr Mian had failed to raise her concerns about Dr Javed to anyone. In the circumstances the Court concluded that it was not unreasonable for the University to hold a disciplinary hearing in which it could hear the arguments of both sides.

The case highlights the fact that it can be perfectly reasonable for an employer to conduct a disciplinary process even when after consideration of all the information and arguments the allegations against the employee are rejected. The case also makes clear that a disciplinary hearing should be based on a thorough investigation, and that the employer must make clear the allegations that the employee will face. The case also highlights the importance providing proper accurate employment references to their potential new employers, and the trouble that can be caused when misleading and exaggerated assertions are made in an employment reference. For individuals this case emphasises the need to ensure that you do not act rashly or prematurely in leaving your employment when disciplinary allegations have been made against you before you have had the chance to attend a disciplinary hearing at which to rebut the allegations- think very carefully first! Finally, the case illustrates the need for employers to ensure that they are fully aware of the content of every reference produced on their headed paper.

If you need further advice on dealing with any matter raised in this article please do not hesitate to contact us at Hallett Employment Law Services Ltd.