Flawed investigation in sexual assault case highlights employer missteps

A controversial unfair dismissal case in London has presented employers with a stark reminder of how crucial an accurate investigation into sexual harassment claims is, as one expert has explained.

Recently, a senior lawyer accused of sexual assault won his claim for unfair dismissal after CCTV footage showed the encounter was, in fact, “consensual from both sides”.

The Central London Tribunal heard that an employee at law firm Fieldfisher was dismissed after a woman at the firm accused him of sexually assaulting her in a public toilet during a work night out. In another incident, the woman alleged that the employee repeatedly invited her to “cancel her Uber” and return with him to the office following a party organised by another colleague.

It was also alleged that the worker acted inappropriately towards another colleague at the work party, following her to the toilet, placing his arm around her waist and waiting for her outside.

However, the tribunal found that the CCTV footage revealed that the encounter between the pair had been “consensual”.

Matt Dean, founder of work culture and behaviour specialists Byrne Dean, broke down the case and explained how it raises some important questions regarding the role of employers in sexual harassment or sexual assault-based dismissals.

“The recent judgement raises important issues that will be current for some years – particularly with the new proactive duty on employers to eradicate sexual harassment. The new duty is a reaction to the fact that women still don’t feel safe from harassment; the research is clear – they aren’t,” Dean said.

“It also lands in workplaces at a time when many of the men we talk to every day are expressing fear for their own positions – asking us how they can protect themselves in this new environment.”

Although this fear was exerted by men, Dean prefaced by saying that the creation of entirely fictitious sexual harassment or assault is extremely rare.

“Our basic position, based on many years of investigating workplace problems, is that people tend not to manufacture allegations out of the blue. Yes, disaffected employees may make whatever they can out of incidents that perhaps appeared unimportant to others at the time,” Dean said.

“But, in our experience, the creation of an entirely fictitious event – or allegations against someone who has done nothing to put themself at risk – are extremely rare occurrences.”

In terms of the case itself, or instances of the case happening in workplaces, it’s an extremely serious situation for employers to be involved with. Dean, therefore, argues that basic errors in investigations simply cannot occur considering the seriousness of the consequences, and horrendous acts that are often perpetuated to the victim.

“When faced with an allegation of serious sexual assault, employers must ensure they have an experienced, emotionally intelligent and process-adept professional with sufficient time to investigate both properly and speedily,” Dean said.

“The employer here was criticised for some basic errors in its investigation and disciplinary process. All of which could have been avoided if the complainant, subject and all relevant witnesses had been properly and fully interviewed by someone they trusted as independent.

“In a ‘he says/she says’ situation like this, an investigator has one key task. Only two people actually know what happened, and the investigator either needs to be clear which party’s version of events they find more credible, or they have to provide whoever’s making that decision with all the background evidence they need to make their own decision.”

“Investigating sexual misconduct is a skilled and difficult job and should be treated as one.”

Overall, for organisational leaders, allowing a culture to foster that permeates such is simply not an option.

“Whenever we investigate situations arising from such events, it occurs to me that the culture that’s been allowed to develop throughout the year is what grounds the behaviour on the evening in question. Reading this judgement, this feels no different: alcohol is just an accelerant,” Dean said.

“Particularly now, doing nothing when sexual harassment may be happening isn’t an option. Any senior leader in a law firm should visualise what they might have to say to a SRA disciplinary or an Employment Tribunal hearing and to question if the culture they’re presiding over requires change.”