Sexual Harassment and the Rights of Accused Employees – Guideline Ruling

Sensible employers take accusations of sexual harassment very seriously indeed. As an Employment Appeal Tribunal (EAT) ruling underlined, however, the rights of any employee accused of such harassment must be treated with equal gravity.

The case concerned a male scientist who was accused of sexual harassment by a female colleague. Following a lengthy grievance procedure, a panel found, on the balance of probabilities, that he had attempted to hug and kiss her when they were in a car together and that he had subsequently put chocolates on her desk, accompanied by a note apologising for his somewhat clumsy behaviour.

The panel found that his conduct, although unwanted, was not aggressive or forceful and amounted neither to harassment nor sexual harassment. In concluding that his conduct was not of a sexual nature in the context of the relationship, the panel noted evidence that he viewed the woman as like a daughter to him and that she regarded him as a grandfatherly figure.

The man later lodged proceedings against his university employer, alleging, amongst other things, that he had been subjected to direct sex discrimination and victimisation during and after the grievance process. In particular, he said that it was humiliating and insulting that he was, despite the outcome of that process, required to undergo training relating to harassment and bullying whereas the woman was not. The Employment Tribunal (ET), however, rejected that complaint.

Upholding his appeal against that ruling, the EAT found that the ET had proceeded on a clearly mistaken factual premise. It erred fundamentally in stating that the panel had made a finding of harassment against him, although not amounting to sexual harassment. There was in fact no such finding and the error undermined the entirety of the ET’s subsequent analysis of the relevant complaint. The matter was remitted to a freshly constituted ET for redetermination.