The Worker Protection Act came into force in October 2024, and a new duty was placed on employers to take preventative steps to protect their employees from sexual harassment.
This new duty has “teeth”. Tribunals were given powers to award a 25% uplift in compensation where the employer failed to meet their duty and failed to take reasonable steps to prevent sexual harassment in the workplace. Undoubtedly, these changes will make employers nervous as the risk of compensation awards, which are already high for sexual harassment, means greater financial impact.
Although employers will be under more pressure to take disciplinary action when dealing with complaints of sexual harassment to help demonstrate that they have taken reasonable steps, they should not allow this to mean that they forego proper process when investigating accusations. It is imperative that thorough and impartial investigations are carried out and the recent tribunal decision in D Rustambekov v Fieldfisher LLP serves as a stark reminder of the risks involved when handling sensitive complaints.
Background:
In D Rustambekov v Fieldfisher LLP a claim for unfair dismissal was brought by a senior solicitor who was dismissed following accusations of sexual assault against two colleagues. Colleague A had accused him of sexually assaulting her in a public bathroom during a work night out and on a separate occasion repeatedly inviting her to cancel her Uber and return to the office with him. Colleague A also accused the Claimant of acting inappropriately with a second colleague, Colleague B. Colleague A made a complaint about the sexual assault in the bathroom and an investigation was undertaken. The HR Director concluded his investigation in one day and recommended that disciplinary action was taken against the Claimant. At the disciplinary hearing, the Claimant refuted the allegations, but the decision was taken to dismiss him.
Decision:
The Tribunal held that the dismissal was unfair and the Judge highlighted a number of significant flaws in the investigation including that:
– there was evidence which contradicted Colleague A’s allegations and these discrepancies were not investigated, and not enough weight was given to
these discrepancies;
– the Claimant was not provided with transcripts of some interviews from the
investigation, and some of the transcripts were transcribed incorrectly;
– there were witness statements which contradicted the conclusions from the
investigation; and
– the Claimant was not interviewed as part of the investigation process as he
was on annual leave at the time of the investigation.
The Tribunal determined there was evidence which supported one instance of misconduct, but this was not sufficient to warrant the dismissal. The Tribunal deemed the investigative process flawed and the disciplinary process defective. As a result, the Claimant succeeded in their claim for unfair dismissal and compensation is set to be determined at a later stage.
Lessons for employers:
It is clear from this recent case, and others that we are aware of, that those investigating harassment must handle allegations of sexual harassment with care, ensuring that all evidence is properly reviewed, and all parties are treated fairly. The same applies to other instances of employee misconduct. The mishandling of
complaints and investigations can lead to reputational and financial consequences.
This highlights the importance of a comprehensive sexual harassment policy, setting out the appropriate steps and stages in the investigation process to ensure that all parties are properly safeguarded whilst the investigation is carried out. Some key takeaways are:
– Impartiality is key: Employers must ensure investigations remain unbiased. Relying solely on allegations without seeking corroborative evidence can lead to wrongful dismissals. Investigations are often best achieved by working with a trusted external investigator, who will have no biases to overcome.
– Comprehensive evidence review: Gathering and analysing all available evidence, such as CCTV footage in this case, is critical. Ignoring or overlooking such evidence risks undermining the integrity of the process.
– Consistency in procedure: Following established disciplinary policies, ensuring everyone involved receives fair treatment and the final decision is defensible.
Accusations of sexual harassment must be treated with the utmost seriousness, but employers also have a duty to protect employees from wrongful accusations. A balanced approach is essential to maintain trust, minimise risk, and uphold fairness.
Employers should ensure their policies reflect the complexity of such cases, balancing support for complainants with safeguards for the accused.
Should you have need for robust policies, training for your internal investigators or
mediation services, contact us on the details below.
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Next Month: All about the statutory right to Neonatal Care Leave and Pay, to be implemented in April 2025.
