Investigating Sexual Harassment Claims – Employment Tribunal Guidance
As seasoned HR practitioners are all too aware, a tricky employee relations issue is seldom resolved by leaving it alone for months on end. In the case of Adenusi v London Underground Limited a failure to carry out a prompt and thorough disciplinary investigation was at the heart of a successful unfair dismissal case, brought by an underground railway worker who was kept in a state of limbo for almost 16 months whilst sexual harassment allegations against him were investigated.
One of the employee’s female colleagues had accused him of plaguing her with numerous highly inappropriate sexualised comments. He denied any wrongdoing and it was a case of his word against hers. Following the long investigation, during which he was suspended from work, the woman’s account was preferred. After his internal appeal was rejected, he was dismissed on grounds of gross misconduct.
In upholding his unfair dismissal complaint, the ET found that the investigation was fundamentally flawed in that relevant managers had throughout shown a significant tendency to accept the veracity of the woman’s account without challenge. Potential inconsistencies in her version of events, and possible motives she might have had for making false allegations, had not been adequately explored.
The ET noted that it was wholly unsatisfactory that so many months had passed between the woman making her complaint and the man’s dismissal. Although he was paid in full throughout the investigation, there was a real risk of evidence going stale and he had been kept in a considerable state of limbo for longer than necessary. Although the delay was not in itself enough to render the dismissal unfair, it contributed to the unreasonableness of the procedure followed.
Such cases of one person’s word against another are inevitably difficult to resolve, but this will be of little assistance in defending cases where the employer has felt unable to make a judgment as to which version of events is most likely. The employer’s duty is to come to a view on the balance of probabilities and carry out a reasonable process, which will enable all concerned to move on – whatever the outcome.