Sorcha Dervin, instructed by Lucie Bradley of Eversheds Sutherland, represented a major aviation company in a three day Tribunal in which the Claimant’s complaint of unfair dismissal resoundingly failed.
On the day in question, the Claimant (a Security Officer at the time) came across a female colleague whom he had never met before. She had been deployed to the Claimant’s terminal to cover a shortfall in staff. During their first and only interaction, the Claimant allegedly made a number of unwanted sexual advances towards her, including comments on her appearance, asking her on a date, and suggesting he would wait for her in the car park after work. The complainant said the incident left her feeling frightened.
A formal complaint did not surface for several months, until the complainant was asked to return to the same terminal where she was likely to cross paths with the Claimant. Following the complaint, the Respondent commenced a formal investigation which involved interviewing and gathering statements from multiple witnesses. The investigating officer recommended the matter progress to a disciplinary hearing, there having been a potential breach of the Respondent’s Dignity at Work Policy which expressly prohibited harassment of any kind.
The Claimant denied the majority of the allegations against him but admitted calling the colleague ‘very beautiful’. He accepted he had said words to the effect: ‘I’ve not seen you before, I would have remembered as you are very beautiful…’. Throughout the internal process and during the Tribunal hearing itself, the Claimant did not accept those words were inappropriate. He only apologised to the extent that the female colleague ‘took it the wrong way’.
The Respondent, having met with the complainant on a number of occasions, believed her version of events in its entirety on the balance of probabilities. The complainant had provided her account on three occasions, and on each occasion, she was found to be clear and consistent. Additionally, her feelings of upset in the immediate aftermath were corroborated by a third-party witness. The Claimant was not able to give any reason why the complainant or third-party witness would lie.
The Respondent’s Dignity at Work Policy stated that even one-off incidents could constitute harassment if deemed sufficiently serious. On balance and taking into account the impact the incident had on the complainant, the Respondent considered the conduct passed the ‘sufficiently serious’ threshold. In light of its findings, the Respondent summarily dismissed the Claimant for gross misconduct.
Employment Judge Eeley found the Respondent’s decision-makers held a genuine belief that the Claimant had committed gross misconduct; they had reasonable grounds on which to base that belief; and, they had reached that conclusion after conducting a reasonable investigation.
One of the main criticisms the Claimant levelled at the complainant was the months it took her to raise a formal complaint. The Respondent’s decision-makers had found: (i) it was understandable for the colleague to raise a complaint in the context of her wish to avoid working with the Claimant in the future; and (ii) not all victims of harassment feel confident enough to raise a complaint immediately. The EJ endorsed that conclusion: ‘The Respondent was entitled to find that those who are subject to harassment may respond in different ways. The Respondent was entitled to conclude that a late report is not necessarily an indicator it is untrue. They clearly weighed it in the balance…’.
The Respondent found comments made about the colleague’s physical appearance constituted a breach of its Dignity at Work Policy, which weighed in its overall finding of misconduct. The EJ agreed this was a reasonable conclusion for the Respondent to have reached: ‘Although [the Claimant] may have meant this as a compliment, it was an inappropriate comment to make to a colleague he’d not met before. Whilst compliments [to strangers] might be acceptable outside of the workplace, they are more problematic within the workplace where matters of personal appearance should not be relevant…’.
The EJ also found it was reasonable for the Respondent to take this partial admission into account when determining the appropriate sanction: ‘The Respondent did not automatically assume gross misconduct would lead to dismissal. However, despite the Claimant’s clean disciplinary record, the Respondent was entitled to take account of the lack of insight into his own behaviour. He should have realised it was inappropriate to call [the colleague] beautiful. He was unable to understand that was inappropriate. The corollary of that lack of insight was the Respondent could not be satisfied that the Claimant would not behave in a similar way in the future…’.
As to the reasonableness of the investigation, the EJ could not find fault with any of the Respondent’s internal processes. In particular, the EJ acknowledged that the appeal manager met with the complainant himself to make his own assessment of her credibility and reliability as a witness, which the EJ remarked was ‘the opposite of a rubber stamping exercise…’.
This was a case in which the Respondent had clearly discharged its investigative duties and satisfied itself that the complaint of sexual harassment was, on the balance of probabilities, well-founded. The Tribunal particularly endorsed the decision-maker’s view that absence of contemporaneous reporting did not necessarily undermine the veracity of the complaint. In dismissing the claim, the Tribunal did not level any criticism at the Respondent in its robust approach to the Claimant’s breaches of its Dignity at Work Policy. The Claimant’s repeated attempts to pass blame to the complainant were unsuccessful at every turn.
Sorcha Dervin is a member of the Farrar’s Building Employment team. She has a busy employment practice representing both claimants and respondents. If you would like to instruct Sorcha Dervin please contact our Clerking Team.