How thorough should a sexual harassment investigation be when an allegation of sexual harassment is made by an employee against another employee?
Employers can be vicariously liable for sexual harassment committed by their employees in the course of their employment, and from 26 October 2024 all employers have a duty of care to act proactively to take reasonable steps to prevent sexual harassment in the workplace. See our previous article on changes that took effect as of 26 October 2024(1).
Taking account of the matters referred to above, how thorough does an investigation process need to be where allegations of sexual harassment are made in the workplace? A recent Employment Tribunal decision in the case of Joe Tobin v William Hill Organization Limited(2) gives some guidance on the matter.
In the above case, Joe Tobin (JT) worked as Head of Search for five years. On 5 July 2024, a grievance was made by a female employee that, at a works event at a Soho pub on 20 June 2024, JT placed his fingers into her mouth when she reacted to an event. She was shocked by the act, instinctively grabbing JT’s fingers to remove them, and further highlighted that every time JT would join a conversation with her and others, he would put his arm on her back and slowly move his hand lower to her buttocks before moving his arm off completely, alleging that it happened more than once.
The female employee also reported the incident to the police on 10 August 2024. After considering the CCTV footage for that evening and witness testimony, the police found no evidence of the incidents alleged, stating: “[They] did not see any sexual assault or other forms of criminal or unacceptable behaviour.” As a result, the police did not pursue the matter.
Despite the above, a disciplinary hearing took place on 30 August 2024, where JT questioned the investigation officer’s impartiality in the process and witness statements, which he believed were contradicted by WhatsApp messages and pictures on his phone regarding timelines of the alleged behaviour. Nevertheless, JT was summarily dismissed for gross misconduct, and he took the matter to the Employment Tribunal (ET) for unfair dismissal.
The ET emphasised that, based upon previous case law, where allegations would have serious consequences for an individual’s career, the investigator should make a greater effort to investigate carefully. There is a need to seek evidence that could clear the alleged perpetrator as well as evidence to condemn them. On the facts of the case, all attention was on confirming JT’s guilt. The employer made no attempt to obtain CCTV evidence to clear him, nor did they examine his WhatsApp messages or speak to witnesses beyond those who verified the female employee’s story. The ET felt that the investigation officer had failed to take proper witness statements, instead sending witnesses a brief email with details of what he thought they had said.
Further, the ET expressed concern over the delay between the incident and the complaint, giving those involved “considerable scope” to collude. Thus, the ET ruled that JT had been unfairly dismissed and awarded him £68,065.29.
Any dismissal must fall “within the range of reasonable responses,” but before that, the employer must have a genuine belief that the employee is guilty, based upon reasonable grounds following a reasonable investigation. The decision in the above case highlights how important the investigation process is, as any knee-jerk reaction to serious allegations can backfire. Investigation officers must be well trained on such matters, remain impartial, and, where appropriate, be supported by external HR consultancy support.
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