This appeal by the employer against a High Court finding of negligence in its investigations of a senior lecturer who had given references to another lecturer, Dr Javed, when he moved to the University of Greenwich, will interest anyone who has had to deal with a situation where an employee does not attend disciplinary proceedings due to sickness, allegedly brought about by the employer instigating those proceedings. 

Problems arose when that Greenwich University raised concerns about the reference given for Dr Javed. It had been alleged that the reference apparently given by Dr Mian were false and misleading and contained many inaccuracies. She denied supplying the three inaccurate references found on her computer that were similar to the Greenwich one but admitted giving shorter, factual references for Dr Jared to other establishments. Dr Mian was not charged by the university with having given any false references for Dr Javed, but rather with complicity with Dr Javed in the preparation of false references because it accepted her evidence that she had allowed him access to her computer to work on said references. There were doubts about whether the signature on the Greenwich reference was actually Dr Mian's.

Dr Mian did not attend the disciplinary hearing set in the light of the initial investigations and went off sick. Her hearing for gross misconduct was eventually held in her absence, although her union representative attended. The allegations were dismissed by a Professor Noon, who found Dr Mian to be "guilty of stupidity and naivety" but not complicity. Dr Mian argued that the university was negligent and breached its duty of care to her in that, if it had investigated further, it would have reached the conclusion that disciplinary proceedings were inappropriate. The High Court judge hearing her case found in her favour. The university appealed on the following grounds:

i) Although at one point, the judge appeared to identify the correct test to apply to the decision to commence disciplinary proceedings against Dr Mian (i.e. whether the University had established that no reasonable employer would have taken that step) the judge did not then apply that test. It is not clear what test he did apply, but it appears to have been a hybrid of his own assessment as to the strength of the case against Dr Mian and a consideration of whether material eventually put before the independent assessor who decided the matter could have been obtained earlier;

ii) The judge failed to give proper weight to the fact that the decision to instigate proceedings was made, not by Dr Daly, who conducted the initial meeting with Dr Mian, but by Dr Merriman and Dr Merriman's decision was made after consultation with the appellant's Human Resources department. Dr Merriman described to the judge in evidence the factors underpinning her decision that disciplinary proceedings should commence. The judge made no finding undermining that evidence and made no finding that those reasons were improper or insufficient reasons for Dr Merriman's decision. 

iii) The judge also erroneously held as relevant to the issue of the reasonableness of the instigation of proceedings, the separate issue of Dr Mian's mental state at the time the decision was made. 

iv) The correct test to apply was whether in all the circumstances the decision to instigate disciplinary proceedings against Dr Mian was "unreasonable" in the sense of being one which no reasonable employer would take. If the judge had applied that test he would have found that Dr Mian had not established a breach.

The Appeal Court accepted the university's arguments. The original judgement was wrong and the judge's reasoning was flawed. There was enough evidence to support the setting up of a disciplinary hearing, notwithstanding some concerns expressed by the Court of Appeal about the investigative process: 

"As the judge himself said, correctly, however, reasonable people could reach different judgments on the same question and it is possible to be "wrong" (in this case, both about the method by which the investigation should proceed and about Dr Mian's culpability) without being negligent."
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