Golf pro dismissed following allegations of sexual harassment succeeds with claim for unfair dismissal
- AuthorMartin Cornforth
In the recent case of Sturgess v Cambridge Country Club Ltd: 3312598/2022 an Employment Tribunal has upheld a claim for unfair dismissal.
The Claimant was dismissed for gross misconduct after the employer received allegations of harassment from three complainants. The allegations were investigated and the three allegations that went to a disciplinary hearing included:
- Making a comment to Ms C that he wanted to "lick her all over."
- Sending Ms C a Facebook message, asking how she managed to look so good every day.
- Making unwanted statements in the bar area in reference to a fellow employee having a resemblance to Jimmy Saville.
Regarding the first allegation the Claimant denied making the alleged comment but admitted that he had said before that the Claimant looked smart and well turned out. the Respondent accepted that it was the Claimant's word against Ms C's but decided that the Facebook message and the Claimant's admission of making other verbal comments supported the allegation. However, the Employment Tribunal found that the employer had not carried out enough investigation. In particular, the Respondent did not ask Ms C the date or time of the alleged comment. The Respondent did not seek to identify any potential witnesses. The Employment Tribunal decided that the Respondent lacked reasonable grounds to believe that the comment had been made.
There was no dispute that the Facebook message had been sent, however the Respondent had admitted that this comment by itself would not have warranted dismissal.
Regarding the third allegation, it was unclear exactly what the Claimant was alleged to have said. The original allegation suggested that he had compared himself to Jimmy Saville. The suggestion that someone else in the bar had compared a different colleague to Jimmy Saville originated with the Claimant. However, that individual was not in the bar on the date that the complainant had suggested the comment was made. As such the Employment Tribunal also decided that the Respondent lacked reasonable grounds to believe that the allegation was proven. It is important to note here that the Respondent did not attempt to identify witnesses in the bar from the CCTV footage.
The Tribunal also found that the Respondent had failed to follow a fair procedure because:
- there were no notes taken or provided to the claimant of any interviews with witnesses;
- the claimant was not given access to or provided with any CCTV footage;
- the claimant was given one day’s notice of the disciplinary hearing and had less than 24 hours to consider the written complaints and evidence provided to him for the first time with the invitation letter;
- The Claimant was given two days to appeal against his dismissal and was not provided with any notes of the disciplinary hearing prior to the appeal hearing.
The Employment Tribunal thus decided that the Claimant had been unfairly dismissed. The Tribunal decided that the procedural flaws identified justified an uplift of 20% to compensation.
However, the Tribunal found although the Facebook comment to Ms C did not justify dismissal, the Claimant had contributed to the dismissal by 40%, which will reduce the remedy.
This is another case that highlights the difficulty that employers can face in balancing their duty of care to employees alleging harassment with the need to protect the rights of the alleged perpetrator. In this case the dismissal might have been fair had the employer undertaken a thorough investigation. Asking the complainant for the alleged date and time of the comment or for the names of any witnesses should have been a straightforward step to take. Likewise, enquiries aimed at identifying potential witnesses from the CCTV footage may have persuaded a Tribunal that the investigation was reasonable.
If your organisation receives a complaint about harassment our team of experienced employment lawyers can assist with the procedure from the outset of the investigation through to any appeal process.
If you are an employer, or employee who needs guidance on any of the above matters, we are here to help. Please do not hesitate to contact our Employment Law Team on 01522 814638, or make an enquiry here.