If employee C complains of sexual harassment by employee B, which employee B denies, and there is little or no corroborating evidence to support either employee's version of events, how can the employer reach a decision?
This is actually quite a common problem for employers when faced with allegations of bullying or harassment.
The EAT have provided some helpful comments in a recent case (B v A and C). C was a teaching assistant. She claimed that a teacher had sexually assaulted her. The Head Teacher did not uphold her internal grievance – he felt there was insufficient evidence. She brought a claim at the Employment Tribunal.
The Tribunal upheld her claims against both the teacher and the school (which was vicariously liable for its employee's actions).
They found the Claimant to be a more credible witness than the teacher, who simply denied that anything had happened.
The teacher appealed. The EAT upheld the original finding. They stated that the real issue the Tribunal had to face was which party to believe.
And this is often the issue that an employer has to face when dealing with a complaint – who do I believe?
Employers are entitled to make up their own minds on that crucial issue. But – by the time it reaches the stage of a complaint, it is often a no-win situation for the employer.
If you do not believe the alleged victim and do not uphold their complaint, they may bring a claim at the Tribunal and the Tribunal may agree or disagree with you. They will have to decide for themselves on the evidence.
If they disagree with you, you could well be held vicariously liable for your employee's actions.
If you do believe the victim, uphold their complaint, and subsequently dismiss the perpetrator, he/she can bring a claim at the Tribunal (probably unfair dismissal). But, in that case the Tribunal may find in your favour even if they believe the perpetrator and not the victim – provided you genuinely believed in the perpetrator's guilt and you had reasonable grounds for holding that belief.
The victim might also bring a claim against you – but that is less likely if you have dismissed the perpetrator.
NB – The first and best line of defence for Employers? Issue a Harassment & Bullying Policy to all staff, make sure everyone reads it and understands it (include in the Induction for new staff), act decisively when an issue comes to your attention.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
