Sexual misconduct allegations and unfair dismissal

Dealing with allegations of sexual misconduct in the workplace is always challenging for employers.   Employers are naturally anxious to ensure that complainants are treated sensitively – all the more so in light of the #MeToo campaign and the revelations of sexual harassment it has uncovered.  But, as a recent case illustrates, it's equally important to treat alleged perpetrators fairly and reasonably. 

This case arose out of a work drinks evening at which it was believed that the Claimant had engaged in sexual activity with a female work placement student.  The Claimant was suspended pending an investigation.   The female student subsequently alleged that he had assaulted her, complained to the police, and then withdrew her complaint after the investigating officer identified discrepancies in the evidence.  Following a disciplinary investigation and hearing, the Claimant was dismissed for gross misconduct.   However, in the meantime the student had withdrawn her complaint to the police.  The investigating manager was aware that the complaint had been withdrawn but did not tell the manager conducting the disciplinary hearing about the withdrawal. 

The Claimant brought a claim for unfair dismissal.   Although the Employment Tribunal dismissed his claim, on the basis that the dismissing manager had made a reasonable decision on the information available to her, the Employment Appeal Tribunal disagreed.  The EAT considered that the fact that the investigating manager withheld important information from the dismissing manager made the dismissal unfair.  

Although in general dismissing managers are entitled to rely on the information made available to them (and knowledge of others within the business will not usually be relevant), the situation is different where someone with responsibility for the investigation withholds relevant facts.   The EAT also commented that, as in discrimination cases, the motives of someone within the business who has manipulated the dismissal process may be attributed to the employer as a whole and render the dismissal unfair. 

Employers need to ensure that the managers responsible for both the investigation and disciplinary stages clearly understand their role and that investigating managers provide all relevant information to the person conducting the hearing.   HR can play a crucial role in ensuring this takes place – although the investigation and disciplinary stages should be led by different managers, there is no need to have different HR professionals involved, so HR can provide an element of continuity. 

More broadly, employers need to ensure that alleged perpetrators of sexual misconduct (or any form of serious misconduct) are treated fairly – sensitivity towards complainants does not override the requirements of a fair disciplinary procedure.