A disciplinary investigation must be undertaken in a manner which is reasonable in all circumstances toward the employee which is judged objectively by reference to the band of reasonable responses. An employer’s investigation must result in a sufficiently clear allegation to which an employee can provide a meaningful response.

In a recent care, a senior lecturer (M) was employed by a university (C). A colleague of M (J) left C to take up another post at another university (G). G contacted C about the disparity between J’s reference and his performance. The reference was on C’s headed notepaper and purported to be written and signed by M. it contained many inaccuracies and significantly overstated J’s qualifications.

An investigation was conducted by ‘D’ which included obtaining information from C about how it had requested the reference from M, searched M’s computer and considered versions of the reference found there, and held a preliminary meeting with M and then interviewed M’s manager on the claims that M made.

D recommended that disciplinary proceedings be brought against M for gross misconduct, being that she had been complicit with J in providing false and misleading employment references. After consultation with HR, C told M that disciplinary proceedings were to be brought against her.

As M was signed off sick at the time, a disciplinary hearing was undertaken in her absence during which allegations were dismissed. M brought proceedings against C on the basis that psychiatric injury was caused by C’s breach of care or alternatively, negligence. It was found that C had breached its duty of care to M as they had failed to make further enquiries and investigate the matter adequately. When C successfully appealed, the Court of Appeal held that an employer did not breach its duty of care to an employee by pursuing disciplinary proceedings against them.

It is clear that the lesson to be learned from this matter is that before initiating a disciplinary process against an individual, the employers must have some reasonable basis for suspecting that he may be guilty of the allegations made against them. A factor that is key is often the individual’s credibility during the investigation stage. It is also interesting that the judge adopted a range of reasonable responses test for defining whether the employer’s action in initiating disciplinary proceedings breached the common law duty of care.
For further information, please contact Koichiro Nakada – Head of Japan Business Group (koichiro.nakada@lewissilkin.com) and Yoko Nakada - Senior Associate, Deputy Head of Japan Business Group (yoko.nakada@lewissilkin.com).
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