An employer that unreasonably takes disciplinary action against an employee may clearly be at risk of a claim for unfair dismissal. However, could they also face personal injury claims if the employee’s health suffers as a result? It is a question that has featured in two recent cases that have come before the Court of Appeal.
In the first*, Coventry University had received a complaint that there was a ‘large disconnect’ between what a reference supplied for a former employee stated and their actual qualities and qualifications.
An investigation found that the request for the reference had been sent to Dr Mian at the University; it appeared to have her signature and on her work PC there were further copies of the same reference. Disciplinary proceedings were started. She denied that she had written the reference and claimed that the copy on her PC had been sent to her. A disciplinary panel eventually concluded that she should be cleared but by this stage Dr Mian had become so stressed that she was signed off sick. In fact, she never returned and, instead claimed compensation from the University for causing her to be ill by taking the disciplinary action against her.
The High Court held that her claim should succeed; further investigations should have been made before disciplinary action was instigated. However, the Court of Appeal overturned this decision. It held that in order for her claim to succeed she had to show that the University had been in breach of contract and/or negligent in deciding to instigate the disciplinary proceedings against her. In order to show this it would have to be established that no reasonable employer would have commenced disciplinary proceedings. Whether or not she had been found guilty of the allegations was not relevant to the question. It was clear here that there was evidence on which a reasonable employer could have decided to instigate disciplinary proceedings.
Similar issues were raised when the former UK High Commissioner in Belize brought a claim** for compensation following his summary suspension or withdrawal from post when suspected of misconduct. Whilst he was eventually cleared, the disciplinary process had made him so ill with depression that he was unable to return to work.
In this case it was found that the employer had been in breach of both the contract and their duty of care. It considered that, at the least, there should have been some discussion with him prior to withdrawing him from the post. The employer was ordered to pay a reported £320,000 damages and £150,000 in legal costs.
However, the employer’s appeal in the Court of Appeal was successful. It found that it would be exceptional for an apparently robust employee, with no history of any psychiatric ill health, to develop a depressive illness as a result of, what was admittedly, a very serious set back at work. The employer had been in breach of contract and the duty of care but it could not have foreseen, in the absence of any sign of special vulnerability, that the employee might develop a psychiatric illness as a result of its decision.
Obviously these decisions will probably come as a relief to many employers. Facing a disciplinary process might be stressful for any employee and the risk that an employer could be liable for compensation should they be cleared of the allegations would have been a huge concern.
However, it should be remembered that an employer does owe a duty of care to the employee, which it will be at risk of breaching if it acts in an unreasonable manner when conducting disciplinary investigations. In particular, before suspending the employee consideration should be given to the impact this will have on the individual. Whilst illness will not usually be a foreseeable consequence there can be exceptions and it should be noted that, in such circumstances, damages will be awarded. Such a situation was seen in a earlier case*** when a care worker was awarded some £26,000 in damages, partly for the mental illness brought on by her suspension from work pending disciplinary actions.
*Coventry University v Mian 
**Yapp v Foreign and Commonwealth Office 
***Gogay v Hertfordshire County Council