Tribunal Criticises Investigation Process in Sexual Harassment Case

The recent Employment Tribunal judgement in Sellers v The British Council offers some helpful guidance on handling allegations of sexual harassment where there is a lack of corroborating evidence, warning employers not to make unreasonable assumptions, exhibit bias towards the complainant, or be dismissive of relevant lines of enquiry during the investigation process.

The background to the claim is that the claimant had been dismissed for gross misconduct following an allegation that he had sexually harassed a woman (the complainant) during a private party in Rome.

On 17 December 2018, the complainant emailed the British Ambassador to report the alleged incident and on 3 January 2019 an investigation was launched. This period of inactivity was criticised by the Tribunal.

Following the conclusion of the investigation, the claimant was dismissed on 7 May 2019. The claimant appealed and the appeal was rejected.

The claimant denied the allegations of sexual harassment and made the case that the dismissal was unfair due to the respondent’s approach to the investigation, the way in which the decision to dismiss had been made and the manner in which the appeal process had been conducted.

The Tribunal judgement was that the employer did not behave reasonably in its investigation and decision-making process and the appeal process did not adequately identify those deficiencies. Accordingly, the Tribunal found the claim of unfair dismissal to be well founded.

A crucial point of interest was that, post the appeal hearing, the claimant submitted a request to re-open the appeal based on further evidence from two witnesses confirming that they did not see anything untoward in his behaviour towards the complainant. This was rejected by the respondent on the grounds that the amount of time that had passed since the incident might have impacted the recollection of the witnesses and that the claimant had had sufficient opportunity to propose witnesses previously. The claimant contested this, arguing that he had been asked to maintain confidentiality which had restricted his access to witnesses during the investigation process.

Whilst it may not be unfair ordinarily to refuse to re-open an appeal process, this was an unusual case and the Tribunal held that there was ‘fresh compelling evidence’ presented which should have been considered. Given the severe nature of the penalty for the claimant, it was the Tribunal’s view that no reasonable employer would respond in this way.

The Tribunal made numerous criticisms of the investigation carried out by the respondent, and the way in which his appeal was handled, which are summarised below.

• A lack of documentation or meeting records relating to the agreed approach to the investigation.
• The scope of the investigation became blurred between the initial complaint and subsequent generalised concerns raised regarding the claimant’s behaviour.
• Key emails and information were not shared with the claimant until the appeal stage.
• The claimant was not told of the nature of the complaint prior to the first interview.
• The investigator did not follow up on potential evidence and in effect ignored potential lines of enquiry.
• Reviews by the internal Case Assessment Panel formed to ensure the investigation considered all lines of enquiry and ensure fairness were not documented.
• There was a stark difference in how the complainant and the claimant were treated. There was a demonstrated bias towards the complainant as no commentary was provided on the inconsistencies in their narrative, whereas the investigator was particularly critical of the claimant’s evidence which showed very little inconsistency.
• The investigator did not establish the circumstances of the alleged assault: for example the location, the sequence of events, whether anyone could have witnessed anything or where the other guests were in relation to the incident.
• The allegations that were investigated were not consistent with the allegations put forward at the disciplinary hearing.
• The decision making which led to the dismissal took a narrow view and ignored the wider circumstances.
• Unreasonable assumptions were made throughout the investigation.
• The appeal process should have been re-opened when two further statements from witnesses corroborating the claimant’s account were provided but this was rejected. Considering the severity of the penalty, this was judged to be unreasonable.

Key take aways for employers:

• Always keep, and be seen to keep, an open mind during the investigation.
• Treat the complainant and the accused equally, with consistent levels of support and impartial, objective consideration of their evidence.
• Employers are not required to explore every potential avenue of investigation, but have to act within a band of reasonableness. In this case it was decided that there were serious oversights and unreasonable assumptions made.
• There may be occasions where it is fair for the employer to prefer the uncorroborated evidence of the complainant but only when all lines of reasonable enquiry have been investigated. In this case, there were potential witnesses nearby when the alleged assault happened who were not approached and documentation which was not requested.
• Appeals can be reopened where there is ‘fresh compelling evidence’.
• Appeals are important. A flawed appeal can lead to an otherwise fair dismissal being unfair.

Author: Sarah Byrne, Associate, ibex gale