A recent Employment Tribunal (“ET”) decision has highlighted how easy it is for employers to get it wrong even though they may have a whole suite of policies and procedures in place. The decision related to how an employer dealt with a sexual harassment matter. Whilst the failings of the employer appear to be extreme at first glance, it is a warning to all employers on how easy it is for the matter to simply be passed from one person to another. The case has learning points for dealing with any issue raised by an employee, including potentially expensive and sensitive whistleblowing disclosures.
An employee, engaged on a zero hours contract was employed as a waitress. The ET found that for eight months she was subjected to sexual harassment by her line manager including inappropriate conversations and touching. The employee eventually went off sick and did not return to work. She brought an ET claim for sex discrimination. The ET found her employer vicariously liable, having failed to satisfy the statutory defence that it had taken all reasonable steps to prevent the discrimination or harassment taking place and awarded her compensation at the top end of the scale at £19,500 for injury to feelings. In making this award the ET took into account the fact that the employer had “the means of addressing the problem” but “wholly fail[ed] to do so”.
What went so wrong?
There were essentially four opportunities for the employer to get it right. But at each one the ET found it failed.
Opportunity 1 – Issue raised with line manager
- The employee first raised her concerns with another line manager who later admitted that her concerns were “going in one ear and out the other”. This manager told the employee to simply raise her complaints in writing.
Opportunity 2 – Issue raised formally in writing and investigated
- About 2 months later, the employee, now on sick leave raised her concerns during a meeting with a more senior manager. She indicated that she hadn’t taken it forward previously “in case [the alleged perpetrator] gave me less shifts”. However, she agreed to put her complaint in writing.
- An investigation took place but the alleged perpetrator was not suspended, placing the employee under further pressure and, as the ET stated, failing “to protect the integrity of [the] investigation”.
- The ET found this first investigation was inadequate. Although the investigating manager described the employee’s allegations as “very serious”, he “made no effort to ask the claimant to provide detailed particulars of the complaints that she was making, no effort to identify precisely what had happened, when or where or who else may have witnessed any of the events”. The ET stated that “the overwhelming impression… was that this “investigation” was perfunctory, that he was simply going through the motions because HR had told him to pursue the matter and that he had not the slightest interest in actually trying to get to grips with what may or may not have happened”. Indeed, the ET concluded “We suspect that [the investigating manager] saw the claimant as being a nuisance and a troublemaker and he was looking for reasons to do nothing… “
- Whilst the first investigation concluded that “certain mannerisms and behaviour were inappropriate”, the respondent wrote to the line manager stating “on this particular occasion we have decided not to proceed with formal disciplinary action as a result of your assurances that you will be able to resolve the issues of concern”.
Opportunity 3 – Issue raised for a second time following submission of ET1
- Just prior to receiving the outcome of the first investigation above, the employee lodged an ET 1. Her employer decided to re-investigate. Again, the ET was critical of this describing the investigation as “wholly deficient” albeit that the second investigator was a “senior HR officer”. Indeed, she “inexpliciably [the second investigation manager] decided to start her enquiry afresh without even reading the papers relating to the previous investigation”.
- It was at this stage that the evidence of the witness who had corroborated the employee’s story initially “evaporated”. But as the senior HR officer investigating the matter did not look back at the first investigation she did not question the witness on this.
- This second investigator went on to dismiss many of the employee’s complaints for the “flimsiest of reasons” – essentially finding there was “no conclusive evidence”. In using the term “no conclusive evidence” the ET commented that “seems to us to be the wrong burden of proof for an employer to apply where there has been a complaint of unlawful harassment. It seems to be more akin to the burden of proof that would apply in the criminal courts That reinforces the clear impression that [the second investigating manager] gave us when she gave her evidence and when we read the documentation in relation to her investigation namely that she was not going to find in favour of [the employee’s] complaints unless she had absolutely no alternative but to do so”.
Opportunity 4 – Appeal
- The employee then appealed and whilst the ET noted that the individual hearing the appeal “at least had the sense to look at all the records of the earlier interviews and noted the points that the Claimant was making”, she then was unable to explain to the ET why she “then wholly failed to pursue the most obvious enquiries” with one of the witnesses.
So what lessons can employers learn?
- Employers should have in place appropriate equality and harassment policies. However, as the ET stressed “… it is one thing to have policies, it is another thing for respondents to implement them. We find in this case whatever their written policies may say the… managers paid lip service to them”.
- Employees should be made aware of the policies. Individuals will then know the expectations regarding behaviour and the consequences of failing to meet them. Victims will also know that they can raise issues with confidence and that they will be handled sensitively. Those employees who are called as witnesses should also have comfort as to how the information they are giving will be used and that on the basis it is given in good faith will not impact on their day to day employment in anyway. Employers should be particularly aware of any vulnerabilities. As this case indicates this may not simply relate to maturity or ill health issues but also employment status.
- Managers should be trained on recognising signs of potential issues, dealing sensitively with individuals who do raise concerns, when they should approach HR and what they will be expected to do to assist in managing any issues. When the employee in this case first raised the concerns, the ET stated that “Ms C could and indeed should have spent time talking to the claimant privately in order to give her assurances, give her encouragement and obtain more detailed information from her. She could and indeed should have escalated the matter to senior management. They could and indeed should have thereafter at the very least have spoken to the second respondent to caution him as to his future conduct”.
- An employer should not shy away from suspending an employee when appropriate. Here the employee making the complaint was off sick by the time of the first investigation but that did not mean that it was still right for the alleged perpetrator to remain at work, particularly given the issues involved and the potential vulnerability of the witnesses. Any suspension should in most cases be on full pay and be permitted by the terms of the employee’s contract of employment or the relevant policy and procedure.
- Anyone investigating a disciplinary, grievance or other complaint should be trained on how to handle an investigation and who they can go to for support. Whilst the manager conducting the first investigation had initially contacted HR resulting in his request for the employee to put her complaint in writing, his subsequent investigation appears to have been unsupported. Ideally the investigating officer should be different to the person hearing and deciding on the actual matter. The individual hearing the matter should also understand what sanctions are appropriate depending on the outcome of the hearing.
- Any issues, including the investigation, should be dealt with swiftly. Here the whole process was extremely protracted, taking over a year from start to end.