Some generally reassuring guidance for employers from the Court of Appeal this month concerning the level of certainty required to legitimise the starting of formal disciplinary proceedings.
Dr Mian worked at Coventry University when accused of complicity in the provision of falsely favourable references for a former colleague. A preliminary investigation was carried out by the University which unearthed among other things drafts of a number of other equally untrue references for the colleague on Dr Mian’s PC, a denial that she had sent the reference in question and an explanation for the seeming improbability of this which bordered at first sight on the fanciful. Somewhat giving away the punchline, the Court of Appeal saw the recommendation that a serious disciplinary charge be brought as “entirely reasonable, indeed almost inevitable”.
Dr Mian was told of the decision to start disciplinary proceedings on the 10th April and went off sick with stress and depression on 12th April. The disciplinary meeting proceeded in her absence, it perhaps being a measure of the proceedings that her trade union representative’s best plea in her defence was that she had been “guilty of stupidity and naivety”. Dr Mian was somewhat hesitantly acquitted of the complicity charge, but never returned to work at the University and later found employment elsewhere.
She sued the University, claiming that it was in breach of trust and confidence and/or negligent in starting the disciplinary proceedings without undertaking the further enquiries which would have shown her to be innocent and so avoided the need for them in the first place. Therefore it was liable, she said, for the psychiatric injury caused by the disciplinary threat. This was particularly the case, according to Dr Mian, because the University knew from a dust-up the previous year between her and a former student that she was prone to take these things badly, indeed objectively unreasonably, and therefore that she was “vulnerable”.
These are very bold assertions. The first implies that you can never convene disciplinary proceedings safely unless the employee is then “convicted” because you would necessarily have to have investigated the thing to death before such proceedings were started. That makes a mockery of the idea that the employer should go into disciplinary matters with an open mind, willing to be persuaded by new evidence or arguments that it is wrong.
The second of Dr Mian’s contentions has some potential merit – of course your behaviour towards your employee must take into account known psychiatric vulnerabilities to some extent. Relevant accommodations might include holding the disciplinary meeting offsite, allowing representation by someone else or the submission of written points instead of a physical attendance, granting some additional time for preparation in advance of the meeting, allowing breaks, etc. However, the Court of Appeal made it clear that even if Dr Mian’s psychiatric vulnerability were clear, which was doubtful, this duty does not extend to not starting disciplinary proceedings where the available evidence otherwise justified it.
It was essential not to blur the line between (a) whether Dr Mian was in fact guilty of the conduct alleged and (b) whether at the time of convening the disciplinary meeting the University had reasonably believed that she might be. The Court of Appeal gave a clear and useful steer to employers contemplating disciplinary proceedings against an employee – they will not be acting unlawfully if their conduct in escalating a matter to formal disciplinary status falls within the familiar “range of reasonable responses” test, i.e. unless no reasonable employer would have started disciplinary proceedings in the circumstances as known to it at the time.
Finally, (here is the most reassuring bit), “It is possible to be wrong (…both about the method by which the investigation should proceed and about …. culpability) without being negligent”. If you can show that you had reasonable grounds to consider that a disciplinary process might be appropriate, and you can evidence those grounds, then you should have nothing to fear from starting it even if the employee is distressed or injured by your doing so.