The facts
Dr Mian was employed by Coventry University as a Senior Lecturer. Her colleague, Dr Javed, was made redundant and found a new position at Greenwich University. Subsequently, Greenwich University contacted Coventry University to express its concerns regarding the “large disconnect” between Dr Javed’s performance and a reference purported to be written and signed by Dr Mian.

An initial investigation was carried out, which included a search of Dr Mian’s hard drive, and separate interviews with Dr Mian and her line manager. The investigation uncovered three other draft references for Dr Javed on Dr Mian’s hard drive. All four references were found to be misleading and inaccurate. Dr Mian denied writing the four references. She claimed the three on her hard drive had been sent to her by Dr Javed, but she had refused to use them. She said Dr Javed may have removed Greenwich University’s reference request from her pigeonhole, and that she had never written him a reference for that role. She claimed she had written shorter references for Dr Javed, but had deleted them from her computer.

Coventry University decided that Dr Mian had a case to answer for gross misconduct and instigated disciplinary proceedings, alleging she had been complicit with Dr Javed in the preparation of false references. Shortly after, Dr Mian went on sick leave. At the disciplinary hearing, her union representative argued she had been “guilty of stupidity and naivety” but not complicity. The independent assessor dismissed the allegations against Dr Mian but said he had found the case “not easy”.

At first instance
Dr Mian contended that her employer was in breach of the implied contractual term of mutual trust and confidence and/or negligent so as to cause her work-related stress in commencing disciplinary proceedings without undertaking further enquiries. It was common ground between the parties that Coventry University’s contractual and common law duties were co-extensive. It was also agreed that a breach would be established if the decision to instigate disciplinary proceedings was “unreasonable” in the sense that it was outside the range of reasonable decisions open to an employer in the circumstances.

HH Judge Barrie upheld Dr Mian’s argument that if further enquiries had been undertaken, proceedings would not have been instigated, as it would have been established that there was an insufficient basis for them. Failure to carry out such further enquiries constituted a breach of Coventry University’s duty of care to Dr Mian.

In the Court of Appeal
Coventry University successfully appealed the decision. The Court of Appeal agreed that the trial judge had erred in basing his decision on an assessment of the overall merits of the case against Dr Mian. The correct test, on which the parties agreed, was whether the decision to instigate disciplinary proceedings was outside the range of reasonable decisions open to an employer in the circumstances. This required an objective assessment, which was not to be made with the benefit of hindsight.

Applying that test, the Court of Appeal found that in the circumstances, a reasonable employer could have concluded there was a case for Dr Mian to answer on a charge of gross misconduct. This was in light of the evidence available at the time proceedings were instigated, particularly the three false references saved on her computer, and the implausibility of Dr Javed having intercepted Greenwich University’s reference request from her pigeonhole.

The Court of Appeal’s judgment cites no authorities, providing no sense of where this case sits in relation to past decisions. It addresses similar issues to those raised in Gogay v Hertfordshire CC [2000] I.R.L.R. 703. The claimant in that case was Ms Gogay, a residential care worker against whom purported allegations of sexual abuse were made by ‘EL’, an 11 year old girl with learning difficulties. Ms Gogay’s employer decided to instigate a formal investigation under s.47 of the Children Act 1989, for the duration of which she was suspended. The investigation found the allegations to be unfounded and she was reinstated, but was unable to resume work due to a depressive illness. Ms Gogay brought a contractual claim against her employer, arguing the suspension was a breach of the implied term of trust and confidence.

The Court of Appeal agreed that the suspension decision was a breach of the implied term. The only evidence against Ms Gogay was in the form of remarks made by EL that appeared to liken her to EL’s abusive father. These remarks were “difficult to evaluate” and could not be described as an allegation of sexual abuse. It was held that inquiries into the care records and with EL’s therapist should have been carried out before deciding whether a suspension was justified. The court found the suspension was a “knee jerk reaction” made without reasonable and proper cause.

The differing decisions in Coventry and Gogay seem to be attributable to the particular facts of each case. The evidence against Dr Mian was strong; there was a reference signed in her name, further references found on her hard drive, and her explanation was implausible. By contrast, against Ms Gogay there were remarks made by a young girl with learning difficulties that were difficult to evaluate. Coventry University had carried out a proper preliminary investigation before instigating proceedings, whereas very limited inquiries had been made when Ms Gogay was suspended. The seriousness of the purported allegation against Ms Gogay was far greater than that made in relation to Dr Mian. Both cases highlight the need for employers to ensure they have carried out a thorough investigation, which produces evidence establishing there is a case to answer, before they decide whether to instigate proceedings against employees. This decision should be considered in light of the seriousness of the allegation, as the court may take this into account.

A final point to note is that the Court of Appeal applied different tests in the two cases. In Gogay, the court applied the “reasonable and proper cause” test, established as the test for breach of the implied term of mutual trust and confidence in Malik v BCCI [1998] AC 20. In Coventry, the court seemed to apply the “range of reasonable responses” test ordinarily used in unfair dismissal claims. It is unclear why this test was used as it was agreed between the parties and therefore not discussed in the judgment. In any event, the factors considered by the court were the same in both cases, despite different tests being used.

Kate Boakes