A London Underground worker sacked for sexual harassment has been awarded £14,500 for his employer’s failure to conduct a timely and reasonable disciplinary investigation.
Mr Adenusi’s claim for unfair dismissal was upheld despite London Underground’s decision to dismiss him being found to be reasonable and there being no suggestion of any alternative, ulterior reason for its decision.
London Underground sacked Adenusi, a customer services manager, for gross misconduct following allegations that he made a series of inappropriate comments of a sexual nature to a customer services assistant, “C1”, who had recently transferred to Tottenham Court Road station.
Conducting investigations
During a return-to-work interview (RTWI) on 16 April 2017, it was alleged he said: that it was important that she recovered from her gynaecological surgery as “she would need to please her future husband”; that she looks like she kept fit as you could tell from her body shape; and that when he first met her, he had thought “wow” and had to control his thoughts.
C1 initially said the RTWI lasted two hours but later stated one hour. Adenusi claimed it was 25-35 minutes.
It was also alleged that for three months after the interview Adenusi, who started working on the Tube in 1994, continued to make remarks about her body.
The judgment described London Underground’s RTWIs as “more thorough than most employers would adopt” particularly given C1’s relatively short absence of a week.
While Adenusi had been trained in RTWIs, the respondent did not have any policy on whether it was appropriate for male managers to conduct them for “female-specific medical conditions”.
C1 decided to make a formal complaint about Adenusi and a meeting was held on 4 August in which the allegations were made.
I find that it was wholly unsatisfactory that there was such a significant time delay in the investigation” – Judge Nicolle
In a letter from area manager Tony Young on 16 August, Adenusi was advised that no pre-judgement had been made and his suspension was merely a “precautionary measure” during the investigation.
He remained suspended on full pay for 16 months until his employment was terminated for gross misconduct on 5 December 2018. He immediately appealed, a hearing for which was held on 17 January 2019, but the decision to reject the appeal and uphold his dismissal took until 9 April 2019.
Under section 98 of the Employment Rights Act 1996 it is for the employer to show the reason for the dismissal. In his decision employment judge Nicolle said that London Underground had shown why it had dismissed the claimant, but he did not find the investigation reasonable on numerous grounds.
The Acas Code on Disciplinary and Grievance says It is important to carry out necessary investigations of potential disciplinary matters without unreasonable delay. In cases where a period of suspension with pay is considered necessary, “this period should be as brief as possible” and that meetings should be held without unreasonable delay whilst allowing the employee reasonable time to prepare their case.
Judge Nicolle said: “I find that it was wholly unsatisfactory that there was such a significant time delay in the investigation… It is wholly inappropriate that it took nearly 16 months…. I do not, however, find that the length of the delay was in itself a sufficient factor to render the claimant’s dismissal unfair.”
Other ways in which the employer did not act reasonably included: that the claimant should have had the opportunity to challenge to the evidence of C1, particularly in relation to the alleged duration of the RTWI; that all lines of enquiry were not followed, particularly in relation to key witnesses; that London Underground did not enquire about the nature of their working relationship, particular his evidence that she worked with him normally and borrowed pens and a phone charger.
In his decision, the judge said: “I find that, had the respondent undertaken an investigation within the reasonable range open to an employer, to include putting any potential inconsistencies to C1, that it would have remained more likely than not that it would still have reached the decision to dismiss the claimant.
“However, I consider that there would have been a chance that the claimant would have been given the benefit of the doubt had such further investigations been undertaken, and the evidence of C1 challenged.”
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A remedy hearing at the central London employment tribunal awarded £14,478 to Adenusi based on his length of service.
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