Sexual harassment: how do you fairly decide what happened in a he said/she said scenario?

Last year the law changed and put employers under a positive duty to prevent sexual harassment. Many employers ramped up their policies and many now say they adopt a ‘zero tolerance’ approach to sexual harassment and include this as an example of conduct that can amount to gross misconduct. 

Is that enough to fairly dismiss someone whose behaviour breaches that policy? And how do you decide what actually happened where there are no witnesses? These were some of the issues the tribunal had to consider in Nayfeh v Barclays Bank UK Plc. 

Facts

Mr Nayfeh worked in the bank as a financial guide in its mortgage team. He had worked there for over nine years and had a clean disciplinary record. 

A female colleague (who was around 20 years younger than Mr Nayfeh) complained that he had made inappropriate sexual comments to her. Mr Nayfeh said that his colleague had been talking about her partner and, in that context, admitted saying “what's the youngest a 40-year-old can go with?” He denied making two other comments, “If I show you my willy, will that make us friends?” and “Why don't you buy yourself some sexy underwear?” 

Mr Nayfeh was suspended on full pay whilst the matter was investigated.

The investigator interviewed the complainant, Mr Nayfeh and his line manager, and other colleagues. No-one witnessed these alleged comments, but a different colleague said that he'd made comments that were “close to the line” on occasion, but none of these were sexual in nature. Mr Nayfeh again admitted the first comment but denied making the other two.  

The investigating officer concluded it was likely that Mr Nayfeh made all three comments and documented this in a report.

Mr Nayfeh was invited to a disciplinary hearing and warned that he could be dismissed if the allegations against him were proven. The letter alleged he had made inappropriate sexual comments including the “willy” comment and included other allegations which hadn't been specifically investigated or put to him.  

At the disciplinary hearing, the chair clarified that the meeting would focus on the three comments covered in the investigation, and not the additional ones referred to in the invite letter. The chair heard evidence from Mr Nayfeh. She didn't hear from the complainant and instead, relied on the investigator's summary of what she had said. 

Mr Nayfeh was told that he would receive the outcome in around two weeks. Instead, it took over four months for Mr Nayfeh to learn that was he was being dismissed for gross misconduct for making inappropriate comments. Despite the assurances he'd been given at the beginning of the disciplinary hearing, he had been dismissed for making five comments, including the three which had formed the original complaint. 

His appeal failed and he brought an unfair dismissal claim. 

What did the employment tribunal find?

As it was accepted that Mr Nayfeh was dismissed because of conduct - a potentially fair reason for dismissal - the tribunal focussed on whether the decision to dismiss him fell within the range of reasonable responses open to an employer. That test also applies to the procedure the employer followed, including the investigation.   

The tribunal found that the disciplinary hearing and the decision making leading up to Mr Nayfeh's dismissal were ‘seriously flawed’ and ‘fell well outside the range of reasonable responses’ for the following reasons: 

• The stakes were extremely high for Mr Nayfeh. He'd worked in financial services for 24 years and would have had almost no chance of continuing that career if he was dismissed for these reasons. Barclays was obliged to investigate exculpatory factors just as diligently as those which pointed to his guilt. She held Mr Nayfeh to a higher standard of proof than the complainant.  
• Linked to this, the investigator had interviewed additional witnesses about issues that were not directly connected to the original allegations to ascertain whether he'd made inappropriate comments in the past. The problem with that approach is that they didn't consider whether the complainant had a propensity to make unwarranted complaints, misremember events, forget important contextual facts or to misconstrue remarks. That was significant as she had a medical condition that caused her to ‘zone out' from time to time.
• It was unreasonable to find Mr Nayfeh guilty of charges that had not been identified prior to the disciplinary hearing. The disciplinary process was based on three charges, but five were ultimately upheld. 
• The disciplinary chair had incorrectly believed that Mr Nayfeh had admitted the contested allegations on the basis that he'd said “I did not do that, but even if I had, it would not have been for a bad reason”. The tribunal made it clear that no reasonable employer would have regarded several firm denials as an admission. 
• The disciplinary outcome was unnecessarily and unfairly delayed. The fact that he was being paid during this time was ‘no answer’. Mr Nayfeh lost the chance to exercise his skills, interact with colleagues and been deprived of all of the non-financial benefits that work brings. 
• The appeal didn't correct these deficiencies. The decision maker hadn't been particularly troubled by the fact that Mr Nayfeh had been found guilty of five incidents - rather than the original three put to him. He should have rolled back the process to determine which charges were investigated, notified to Mr Nayfeh and determined. He had also spoken to the complainant but hadn't sufficiently explored whether her evidence was reliable. He'd not told Mr Nayfeh about this conversation or given him an opportunity to comment on it. On this the tribunal said:  ‘In a case where there are only two witnesses, it was a serious procedural defect to deny the claimant the chance to comment on additional evidence from his accuser’. 

Barclays didn't have reasonable grounds to conclude that Mr Nayfeh had made the alleged comments and no reasonable employer could have dismissed in those circumstances.  

Was the claimant partly to blame for his dismissal? 

The tribunal concluded that Mr Nayfeh contributed to his own dismissal and ordered that his compensation be reduced by 15% to reflect this. That's because he'd admitted one remark:  “what's the youngest a 40-year-old could go with”. “Go with” is slang for sexual relations and the tribunal said it was used in that sense. The judge rejected Mr Nayfeh's evidence that he thought it meant dating but said even if that was true, it was liable to be understood in a different way by anyone who heard it. 

The comment was ‘reckless’ and ‘inappropriate’ and was likely to make people feel uncomfortable, especially younger female employees. It was also inconsistent with Barclay's policies which Mr Nayfeh had received training on. 

Would a fair procedure have led to the same outcome? 

The tribunal acknowledged that a fair investigation might have produced stronger evidence either supporting or refuting Mr Nayfeh's guilt. It also accepted that Barclays could have still found that he had committed gross misconduct even if only one or two of the allegations had been upheld. However, it emphasised that a ‘zero tolerance’ approach to harassment does not automatically justify summary dismissal for a first offence. Other disciplinary measures could have been considered to reflect the seriousness of Mr Neyfay's misconduct. 

As a result, the tribunal settled on a reduction of the compensatory award by 50%. The final amount of compensation will be determined at a later date if the parties can't reach agreement.

Learning points 

1. Who do you believe in a he said/she said scenario?

It's never easy to determine what actually happened where there are no witnesses. You must be able to demonstrate that you formed a genuine belief on reasonable grounds that the alleged misconduct occurred. 

Where facts are contested ask:

• what evidence corroborates what each side says?
• did they tell anyone else what had happened or record it anywhere? Contemporaneous records are more compelling than those created sometime after the events in question were alleged to have taken place. Did the person they tell have any reason to lie? 
• are there any power imbalances between the parties? Might this have impacted how one side reacted?
• what other circumstances are relevant? For example, was there already conflict between the parties? 

Remember - the job of the investigator (and subsequent decision makers) is to decide what is more likely than not to be the truth. They don't need to be certain and provided they reasonably believe that one person's version of what happened is more likely than the other party's version, they can make a finding to that effect. 

If you genuinely can't decide between the two versions, you have a deadlock. Where that happens you will usually need to give the alleged wrongdoer the benefit of the doubt. 

2. Adding new allegations

The process may uncover new allegations that you want to put to the employee. If that occurs during the disciplinary hearing, it's sensible to pause it to investigate. The employee should be given any new evidence, time to consider it, and the opportunity to respond to it. 

As the tribunal said in this case, it's not good enough to simply expand the charges simply because they are similar to those that have already been investigated. 

3. Training employees 

Most employers have policies which require their staff to uphold high standards of behaviour. These are only helpful if you can demonstrate that you've shared them with your staff and have provided suitable training. 

In this case, Barclays was able to prove that Mr Nayfey was aware of its policies and it had conducted regular training and testing on them. Mr Neyfey seems to have thought that telling the tribunal he had skipped the required reading and moved straight to the quiz might help his case. It didn't. The tribunal said that strategy was at ‘his own risk’. And it found that the steps taken by the respondent to draw the standards of behaviour it expected of its employees were 'more than reasonable’. 

4. Training managers

Many of the mistakes made by Barclays could have been avoided if the managers in charge of the disciplinary process had been properly trained. They don't appear to have understood the basic principles of fairness or the standard of proof they needed to meet. 

This will become even more crucial given that the Employment Rights Bill will give employees are ‘day one’ right to bring an unfair dismissal claim. 

How we can help

Our online Back-to-Basics training gives your line managers the tools they need to handle day-to-day challenges confidently. We have a number of modules - including how to handle investigations and disciplinary hearings. We also have online training on sexual harassment - including a specific module designed specifically for line managers.

You can find out more about these in our brochure. Please speak to Gordon Rodham or Jenny Arrowsmith if you need more information. 

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