A senior lawyer accused of sexual assault has won his unfair dismissal claim after a judge ruled that CCTV footage showed his female colleague had misrepresented his behaviour, an employment tribunal has heard.
Mr Rustambekov was a lawyer at London firm Fieldfisher when he was accused of sexually assaulting a colleague at a post-work party at the Savage Garden rooftop bar in London.
Rustambekov was dismissed by the firm on 6 November 2023 because it found that in January 2023, he had sexually harassed one woman, Colleague 1, by repeatedly inviting her to cancel her Uber and return with him to the office following a party organised by another employee. And on 20 July 2023, he had acted inappropriately toward Colleague 2 and Colleague 1 at a work party by following them to the toilets and sexually harassing them.
But CCTV showed the encounter between the pair had been “consensual”, the central London tribunal heard.
Employment judge Farin Anthony found flaws in Fieldfisher’s investigation report. In particular, witness statements did not support the investigation’s conclusions; a key witness did not say she had witnessed Rustambekov inviting Colleague 1 and Colleague 2 to go into the toilet to have sex, as the investigation claimed.
Sexual harassment
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Rustambekov, who worked in Fieldfisher’s dispute resolution department, was perceived as often involving himself in “flirtatious banter”. One colleague said: “He is very playful and likes to present as a ‘ladies man’. If there is a (sic) photo booth, [the claimant] would want to be in a picture with him in the middle and ladies on either side.”
Witnesses said that socially female colleagues happily joined in games such as Snog, Marry, Avoid at social events.
Colleague 1 claimed that in the July incident, Rustambekov had “grabbed me and took me into the disabled cubicle and locked the door. I went for the lock and he pinned me against the wall. I kept trying to reach the lock and he pushed me away from it. He kissed me and I didn’t want it to happen. He tried to move his hand under my skirt. I was trying to move away. I don’t know how long I was in there for but Jas [another colleague] noticed I was missing and I could hear her calling for me outside. I said “Jas knows I’m in here unlock the door. He did. Jas could see I was upset and so we went home…”
Earlier in the evening, said a witness, Colleague 2 had left to go to the toilet and “I noticed [the claimant] followed after her and put his arm around her. I went after both of them and went to the toilet and checked she was OK. I said I noticed [the claimant] had put his arm around you – she said he did but “I told him to f off.”
The investigation reached its conclusions about these events on 1 August.
Rustambekov returned from leave on 7 August 2023 and was notified that his employer had decided to commence disciplinary proceedings against him in respect of the allegation of “unwanted conduct of a sexual nature including inappropriate touching, kissing, persistent sexual advances and flirting (prior to and including on 20 July 2023) as well as intimidating and intrusive behaviour (locking a female colleague in the accessible toilet).”
At a disciplinary hearing on 16 August, Rustambekov denied the interpretations of the allegations against him and asked whether CCTV footage had been requested. He specifically denied pinning Colleague 1 to the wall, kissing her and putting his hand up her skirt. He said Colleague 1’s account was “complete fiction”.
CCTV evidence
On 10 September the Hilton provided the respondent with a written description of the CCTV footage. The Hilton’s representative stated: “According to CCTV it [the toilet incident] seems consensual from both sides. Female A initiates a hug, Male A honours this. They are hugging for quite a while then start kissing and Male A gently directs towards the disabled toilet while hugging. Female A does not resist, no force was used at all.”
Describing the scene after the pair left the toilet, the Hilton representative said: “Female A smiling, Female B looks surprised, Male A smiling. They all talk in a normal manner, no argument took place. None of them are frustrated or
distressed.”
On 18 September Mr Rustambekov raised a grievance, saying that the “allegations presented against him were very serious and may have grave consequences for him not limited to the loss of a job, licence to practice law, reputation, but also detrimental effects on his family and health.”
Mr Rustambekov was dismissed in November despite the flaws in the evidence against him; and his appeal was dismissed in February 2024.
However, at the tribunal, the judge stated that Colleague 1’s version of events immediately before the accessible toilet incident was “deliberately false” and “wholly unsupported by the CCTV footage description and wholly incredible.”
The judge said: “The lie could only be to protect her own interests and her reputation especially given [another colleague] had witnessed her exiting the accessible toilet together with the claimant.”
Accordingly, said Judge Anthony, the respondent – Fieldfisher – “did not act reasonably in treating the reason for the claimant’s dismissal as a sufficient one. I find there were alternatives to dismissal. I find the claimant’s claim for unfair dismissal is accordingly well founded and succeeds.”
Compensation will be determined at a later date.
In a statement, Fieldfisher said: “We are disappointed by the employment tribunal’s ruling. While we do not agree with the findings, we will take the time to reflect on the judgment and consider our next steps.
“We do not tolerate inappropriate behaviour at Fieldfisher. We stand firmly by our decision to have taken decisive action against it in this instance and will continue to do so going forward. Still, in light of the ruling, we will be reviewing our internal disciplinary procedures to ensure that our response to instances of inappropriate behaviour is thorough and robust.”
Professional comment
Responding to the judge’s ruling, Matt Dean, founder of work culture and behaviour specialist Byrne Dean, said the case was unusual in that “people tend not to manufacture allegations out of the blue”.
Dean was critical of Fieldfisher’s internal investigation: “The employer here was criticised for some basic errors in its investigation and disciplinary process, all of which could have been avoided if the complainant, subject and all relevant witnesses had been properly and fully interviewed by someone they trusted as independent.
“Investigating sexual misconduct is a skilled and difficult job and should be treated as one.”
He added that the case was particularly interesting in light of the new duty on employers to proactively prevent sexual harassment from taking place. He said: “It lands in workplaces at a time when many of the men we talk to every day are expressing fear for their own positions – asking us how they can protect themselves in this new environment.”
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