Who to believe?

Allegations of sexual harassment are always a cause for concern. But what do
you do when the allegations are uncorroborated? And what happens when it
emerges that the case has more to it than first disclosed? Joe Glavina, Katie Jackson-Turner
and Rob Riley, assess the aftermath of an office affair

Bob has been employed as a sales manager for Sellit & Co for five years.
He has recently been advised that his sales team’s results are poor and that he
will need to make a big improvement if he is going to hit budget. Bob returned
from sick leave six months ago, during which time his colleague, Wendy, also a
sales manager, managed Bob’s team along with her own. During that period Bob’ s
team performed better under Wendy’ s management. Bob now complains that Wendy
has been sexually harassing him and this is the reason for his poor
performance. He requests a meeting with you to discuss what the company is
going to do about it. What should you do?

JG comments This situation should be dealt with very promptly. The first
step is to check that there is a sexual harassment, or equal opportunities
policy, which sets out the procedure for dealing with allegations of sexual
harassment. Assuming there is a policy in place, you first need to carry out an
investigation, which will involve talking first to Bob to gain a full
understanding of what has happened and ensure he is aware that the complaint is
being treated seriously from the outset. You will need to explain to him the
procedure you will follow, the timescale and the fact that the matter will be
treated in confidence, as far as possible. You will then have to decide whether
a formal investigation is necessary.

Sometimes it is possible to resolve fairly minor complaints by having the
complainant raise their concerns directly with the alleged harasser, provided
there is support from HR. It is worth suggesting this to Bob, but if he
declines, as is likely, a formal investigation will be necessary. This would
entail interviewing any witnesses and taking statements from them. You must
stress the importance of keeping the allegations confidential throughout the
process. If witnesses insist on anonymity you will need to take account of the
fact that Wendy is likely to be at a disadvantage in responding to their
evidence and so the appropriate weight to be given to them must be carefully

Further steps might include looking for other evidence that could support
Bob’ s claims such as e-mails, notes or other documents. Wendy must be informed
of the allegations and be informed of his version of the events.

With regard to informing Wendy, timing will be crucial. Often it is best to
find out whether the allegations have any merit before confronting a member of
staff. However, once an investigation has started, rumours spread and so it may
be preferable for Wendy to be told sooner rather than later. If the allegations
are very serious, consideration should be given to suspending Wendy or
separating the two employees.

You have further discussions with Bob and he explains that he had an affair
with Wendy three years ago. He tells you that he finished the affair and as a
result Wendy began harassing him. He admits that he did not mention it
previously because he was embarrassed and thought the harassment could be
stopped without mentioning it. Bob tells you that on the last occasion they
attended an event together Wendy further harassed him. At your request Bob
provides a detailed written account of all of his allegations against Wendy.
The account covers over 20 incidents, some at work and some outside work, but
the majority of the incidents were not witnessed by anyone except Bob. A
conference period is commencing. Both Wendy and Bob and their teams will have
to attend and participate in these conferences, which will involve overnight
stays. Wendy will be the key speaker at some of these conferences. What do you
do next?

KJ-T comments Once Bob’ s allegations have been explored and there is a case
for Wendy to answer she should be interviewed. The circumstances may mean that
this takes place after the conference. However, in the meantime it will be
necessary to ensure that Bob and Wendy are kept apart.

Assuming that there is insufficient evidence to suspend Wendy there is a
risk they will meet at the conference, which is undesirable. This is a difficult
situation to handle because insisting Wendy moves to another hotel or does not
attend the conference will risk undermining her position. Picking on Bob is
also tricky because it could lead to an allegation of victimisation on the
basis of less favourable treatment for having raised the complaint.

You will need to speak to both parties and reach a solution which both would
be happy with. Asking the line manager to act as a chaperone might be a

You interview Wendy after the conference and she confirms that she had had
an affair with Bob. At the time she felt that Bob had a problem with the fact
that the affair had ended and that as a result he was making her life difficult
by raising the grievance. In relation to the allegations that she had harassed
Bob, Wendy denies any inappropriate behaviour and mentions that she actually
tried to support Bob in his work and had put him forward for promotion. She
suggests that it is very convenient that with the majority of Bob’ s
allegations there was never anyone else present. What practical steps might you
take to help you to assess the evidence? And assuming that there is
insufficient evidence to support the allegations of harassment, what steps
should you take to resolve the situation and enable the parties to continue

RR comments In the absence of further independent witnesses, you will have
to weigh up Bob’s word against Wendy’ s, which makes it difficult to decide who
to believe. The important thing is that the approach you take is fair, objective
and can be justified. A useful approach to take is to create a matrix into
which you record all of Bob’ s allegations, together with any supporting
evidence and, alongside this, you record Wendy’s explanations, together with
any supporting evidence. You can then consider each allegation in turn and
assess its weight. In this way you are better able to judge the credibility of
each piece of evidence and, importantly, justify your decision to the parties
and, if necessary, to an employment tribunal.

Assuming that there is insufficient evidence to support the allegations of
harassment you will need to explain your reasoning to both parties. You should
also explain the business need for finding a solution and try to get both
parties to "buy in" to that solution.

If the parties cannot work together, then one of them will need to be moved
and this will involve considering both the interests of that individual and the
needs of the business. Ultimately, if neither is prepared to cooperate, or if
the business cannot accommodate a move, then dismissal of one or both of them
will need to be considered. Provided a fair procedure is followed the dismissal
is likely to be fair in these circumstances.

Obviously any such dismissal would need to be preceded by proper consultation
and the basis for choosing between the two of them would need to be justified
on objective grounds. The final decision will inevitably take into account
their relative value to the business.

Rob Riley is a partner, Joe Glavina a professional support lawyer, and
Katie Jackson-Turner a senior solicitor in the employment department at
Addleshaw Booth & Co

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