An important case recently heard in the Employment Tribunal highlights the importance of training managers on anti-harassment policies, and what they should do if harassment is reported to them.
In this case, KJ was employed by the British Council but had been working in Morocco as a teaching centre cluster lead when Morocco entered lockdown because of the Covid pandemic. Her role was deemed business critical and so she stayed in Morocco throughout this period, as well as Tony Reilly, who was the organisation’s most senior person in the country at that time. At first, their relationship was amicable as Reilly had helped KJ secure flights home to the UK when her father sadly passed away. However, the relationship soon became obsessive, and had culminated in stalking, constant messages, and sexual harassment.
KJ proceeded to lodge a formal grievance, however, the Company’s internal investigations revealed that there were no unwanted sexual advances. On the advice of her line manager, who said KJ should have been clearer in her communication that she did not want anything to happen, KJ emailed Reilly explaining how she felt. Reilly had replied with an apology, and an acknowledgement that the behaviour he displayed was wrong. However, even after this point, Reilly continued to message KJ and even turned up to work social events he knew KJ would be at, which made her even more uncomfortable.
Despite KJ’s report of Reilly’s actions to his line manager, no formal action was taken against Reilly by any member of management, or anyone at the British Council, in relation to the allegations made. As a result of this, KJ submitted a formal complaint to the British Council’s regional HR director. The examples of what she had experienced were taken straight from the organisation’s bullying and harassment policy, and included criminal behaviour, unwanted sexual advances, and physical touching. The organisation’s Speak Up Committee (SUC) – which was chaired by British Council CEO Andrew Williams – was notified of the complaint.
The investigation report was submitted to the SUC. Ultimately, the SUC concluded that the allegations of harassment were upheld but the allegations of sexual harassment were not. As part of its conclusion, the SUC stated: “Both parties have admitted that they were either exploring a romantic relationship or were being flirtatious with the other. [The claimant] has indicated that she was flirting back with Tony until early November, and Tony was also exploring the boundaries of their relationship.”
KJ raised concerns about the outcome with HR and resigned by email. She said receipt of the grievance outcome was “the final straw” that led to her resignation. She appealed the outcome of the grievance, and the organisation’s regional director was asked to be the final decision maker. As part of his findings, he said: “If [the claimant] was a victim of harassment/sexual harassment and stalking, why did she share such friendly, occasionally intimate, messages with TR, through November and December?”
Employment judge Shore ruled that Reilly sexually harassed KJ and that the British Council was vicariously liable for his actions. Furthermore, the tribunal found that the SUC’s investigation was “deeply flawed” and “effectively said that the claimant had given a green light to Mr Reilly’s behaviours”. It found that the British Council failed to “proactively or reactively take steps to protect the claimant from Mr Reilly’s behaviour and/or take adequate effective measures to prevent it”.
The tribunal found the conclusion of the internally appointed investigator’s report – that there were no unwanted sexual advances – “inexplicable and entirely unsustainable” and “internally contradictory”. Ultimately, the tribunal stated that the SUC “erroneously and inappropriately attributed blame and responsibility to [KJ] for Mr Reilly’s harassing actions by dismissing his behaviour as having been encouraged by her” and “failed to uphold the complaint of sexual harassment by concluding that unwanted physical touching on two separate occasions did not constitute sexual harassment”.
This case highlights to employers that a clear policy concerning sexual harassment must be a priority in protecting their employees and in the interests of the organisation.
It is the responsibility of employers to take active steps to implement the policy they have in place and enforce better training, communication and expected behaviours throughout their organisation.
Written by Lucy Williams FCILEx
Head of Employment Law and HR at Key Group Services Limited