Tribunal finds Headteacher’s comments about a male member of staff looking ‘fit’ in his Speedos amounted to sexual harassment

Specialist Employment Solicitor, Charlotte Holman, takes a look at recent case law to examine how a sexual harassment claim was brought.

Background to the case

The Claimant had worked at the Respondent school for a number of years up until his dismissal at the end of 2020 which was the result of the Claimant lying about his absence from work to take a summer holiday.

Further to the Covid-19 pandemic, the school had been closed to most of its pupils and a rota had been drawn up requiring staff to attend the school at various intervals. On 15 July 2020, the Headteacher notified all staff, including the Claimant, that they would all be required to attend the school during the period 20 July to 24 July 2020 inclusive. The Claimant made a request to take holiday during this week however the Headteacher refused the request as when the Claimant had been granted special leave previously he had failed to return to work on time. The Claimant was notified of the refusal by email.

Later that same day, the Headteacher discovered that the Claimant had gone to the pub for leaving drinks before he and his girlfriend set off on a ‘European tour’. On 16 July 2020, the Headteacher wrote to the Claimant requesting to meet with him on 21 July 2020 but the Claimant replied saying he would not attend work as he had Covid and was self-isolating. The Headteacher wrote to the Claimant on 28 July telling him his behaviour was unacceptable and a disciplinary investigation would be commenced. The Claimant went sick from 2 September 2020 and produced a sick certificate which cited he was suffering from ‘work related stress’. It was around this time that copies of 2 boarding passes turned up which identified the Claimant and a female passenger had checked in for a flight scheduled for 16 July 2020. The Claimant alleged that he had printed the passes in order to try and obtain a refund.

On 8 September 2020, the Headteacher wrote to the Claimant saying that she would suspend his salary if he did not contact her. The Claimant provided another sick certificate signing him off until 27 September 2020. The school instructed an occupational health report be carried out but this was perfunctory and did not clarify whether the Claimant was fit to participate in disciplinary proceedings. The Claimant was then signed off sick until 4 January 2021. He did not attend an investigatory meeting which was scheduled for early October 2020 as he ‘did not have the capacity to be involved with anything work-related’. The school did not follow up with the Claimant’s GP about his health and it did not make any further enquiries with the occupational health specialist instead taking the content of the report as sufficient to proceed with the disciplinary process.

In November 2020, the school wrote to the Claimant telling him that he would need to attend a disciplinary hearing in relation to allegations of gross misconduct namely for misrepresenting the reason for his absence at the end of the summer term which had also caused an alleged loss of trust and confidence in him. The school sent the Claimant a copy of the ‘investigation report’ but this was incomplete as it did not include various documents such as witness statements which had been referred to in the report.

On 11 November 2020, the Claimant submitted a complaint regarding sexual harassment by the Headteacher. He cited various historic incidents of sexual advances including an allegation that, in June 2020, the Headteacher had made a comment that she wanted him to take her to meet his parents. The Claimant additionally alleged that he had been ‘used and abused’ and held back from professional development opportunities.

On 13 November 2020, the school proceeded to hold the disciplinary hearing without the Claimant who had made clear in his complaint on 11 November 2020 that he was not fit to attend. The Claimant was subsequently dismissed on 15 December 2020. He appealed the dismissal decision claiming the investigation had not been fair and that his landlord had provided a statement to show he was at home on the dates in question however the school did not take the Claimant’s evidence or grounds of appeal into account and upheld the dismissal decision.

The Employment Tribunal’s findings

The Employment Tribunal found that although it was satisfied the Claimant had committed misconduct, the school’s disciplinary process was substantially flawed for the following reasons:

• The Claimant was on sick leave from the start of the Autumn term and remained sick until his dismissal. He was referred to occupational health but the resulting report which was given was poor. The Judge said that the school should have sought medical advice from the Claimant’s GP or a more thorough report from occupational health given the Claimant’s job was on the line.
• The school was in a ‘rush to dismiss’ the Claimant. Despite the Claimant informing the school that he was not able to attend a meeting because he was not well enough the school continued to hold meetings without the Claimant and without taking further advice from the GP or occupational health regarding the Claimant’s health and ability to attend such meetings.
• The Headteacher’s continued involvement throughout the process and influence in establishing facts from as early as 28 July 2020 where the Judge considered she made a decision that the Claimant had misrepresented his absence. This decision had been made before the Claimant had been given the opportunity to speak and before any disciplinary investigation had been carried out.
• Flaws in the process such as not sending the Claimant copies of witness statements which were referred to in the ‘investigation report’.
• The Judge found the investigation report was ‘short, inaccurate and hopelessly biased’, commenting on the language used as being particularly condemnatory of the Claimant. The report was in breach of the ACAS Code of Practice which sets out the minimum standard expected of employers in carrying out a fair disciplinary process.
• The Judge noted the Disciplinary Chair had not had any training in her role and that she did not do anything other than accept the flawed investigation report e.g. she did not question any discrepancies. The Chair also made a decision regarding the Claimant’s grievance without hearing directly from the Claimant.
• The school refused to consider the Claimant’s evidence, did not take into account any mitigating factors (this was not properly addressed in the dismissal letter) and the subsequent appeal was used to rubberstamp a bad decision.

The Tribunal also found however that the Claimant was a dishonest witness as during cross examination it materialised that he had fraudulently put together a bank statement which he had initially sought to rely on as evidence that he was in the UK on the dates he was required to attend the school.

Turning to the allegations of sexual harassment, the Tribunal found the Headteacher had sexually harassed the Claimant for the following reasons:

• The comments made were inappropriate and there had been a consistent theme of remarks about the Claimant’s supposedly fit body and his speedos.
• Whilst the comments were ‘jokey’ in nature it was accepted that language and attitudes change over time and comments that might have been prevalent and acceptable in a workplace 30 or 40 years ago are no longer justifiable or tolerated. The Judge drew a comparison of similar comments made by a senior older man which would generally be regarded as unacceptable if made towards a younger female colleague and therefore the circumstances of this case should similarly be regarded as unacceptable.
• The Claimant objected to the comments and therefore such comments could not be deemed as ‘teasing or risqué’.
• Comments like this have no place in the modern workplace.

The Judge noted that the Claimant did not complain about the Headteacher’s behaviour until he raised his grievance which was sometime after the comments had been made. This gave the Employment Tribunal the impression that the Claimant was not particularly troubled by the comments and the complaint was made in retaliation against the disciplinary issue which was ongoing against him. Given the comments did not cause serious harm and he chose to take offence to the comments when it suited him, the Tribunal made a ‘lower band’ award of £2,500.

Although the Tribunal did find the Claimant was unfairly dismissed from his employment and had been subjected to sexual harassment, it applied a 70% reduction to the compensation it awarded to the Claimant given the Claimant’s dishonesty and conduct which contributed to the school’s decision to terminate his employment.

What can employers learn from this case?

Allegations of sexual harassment, whether involving senior or junior staff, must be treated seriously and dealt with appropriately. Employers have a duty to protect staff from sexual harassment and to take all reasonable steps to prevent harassment from occurring.

Employers should:

• Put into place clear policies and procedures and ensure that staff are aware of the same.
• Introduce, regularly update and roll out training for all staff so that they know and understand what is and what isn’t acceptable conduct or behaviour in the workplace.
• Train managers to deal with complaints of sexual harassment in a sensitive and appropriate manner. Those who are responsible for investigating a complaint should not let their own views influence a situation or dismiss a concern.
• Investigate and deal with as far as possible any complaints which have been made some time after the incident took place. This includes talking to the person who has made the complaint as a starting point. As demonstrated in this case, although the incidents and comments were historic, the Tribunal still considered these and awarded compensation where it found some of the alleged incidents did occur.

Employers also need to ensure that where they are considering disciplinary action for alleged misconduct and/or gross misconduct matters that they adhere to the standards set out in the ACAS Code of Practice on disciplinary and grievances otherwise they risk claims for unfair dismissal where they fall short of such standards. Whilst an employer may be confident in its reason for dismissing an employee, where that employee has over 2 years’ service as was the case here, the Employment Tribunal will require the employer to demonstrate it carried out a fair process before reaching a dismissal decision.

Holmes & Hills provide bespoke training to organisations to ensure they have the confidence and ability to deal with discrimination and disciplinary issues. To discuss training options, or to access advice from one of our employment lawyers, please get in touch.