It is an age old problem frequently confronting Courts and Tribunals. Faced with differing accounts of what was said in a two person conversation, judges must weigh up the credibility of evidence they hear at trial and decide which witness is giving the more accurate version of events. To do this, judges use their expertise and experience to assess the witnesses’ reliability while taking account of all other relevant circumstances.

In employment disputes, this evidential conflict at Tribunal is quite often determinative of the claim. In discrimination cases particularly, “he said/she said” scenarios with no third party witnesses require the balancing act of evidential assessment. For instance, harassment claims under equality legislation frequently rely on allegations that oral statements were made contravening the law.

Before disputes reach Tribunal, employers themselves have to make judgments after investigating misconduct allegations, quite often hearing conflicting evidence of what exactly was said or done. An employer’s disciplinary process has quasi-judicial qualities but is far removed from the more formal constraints of Court or Tribunal process. When assessing the quality of an employer’s investigation into alleged misconduct, Tribunals take account of that particular employer for instance whether it is a large business with a dedicated HR function or a much smaller employer where managers multitask. Section 113 of our Employment Act 2006 specifically mandates consideration of “the size and administrative resources of the employer’s undertaking” when the Tribunal assesses if the employer has acted reasonably in a dismissal scenario.

A recent Scottish case involved a harassment claim under equality legislation where one employee was alleged to have made inappropriate sexual comments to a colleague resulting in disciplinary proceedings and dismissal of an employee. The employer was a large high street bank with substantial resources.

In the subsequent Tribunal complaint, the Tribunal found that the bank’s investigative procedures were seriously flawed meaning it did not have reasonable grounds to conclude the alleged comments were made. While there were a number of procedural mistakes, the Tribunal also noted the disciplinary process took four months during which the employee remained suspended; this was considered too long given the nature of the allegations, the potential for damage to reputation and the need for clarity. The Tribunal noted that an employer can have a zero tolerance policy to harassment as encouraged by legislation but processes still have to be procedurally fair. UK legislation has bolstered prevention of harassment by recently mandating a positive duty on employers to prevent harassment.

In its judgment the Scottish Tribunal looked at how employers might properly deal with circumstances where there may be no independent witnesses to allegations of relevant verbal statements. Factors to consider include: taking account of all of the circumstances; whether there is any corroboration or contradiction of evidence given; power imbalances between the individuals; background facts and any other relevant consideration. The employer must have a genuine belief in the disciplinary hearing’s conclusion, while holding reasonable grounds for that belief having followed a process fair to all parties.

Whereas in the Scottish case the dismissal was found to be procedurally unfair, the alleged perpetrator was also found to have contributed to the situation and the Tribunal recognised that a fair disciplinary process might yet have resulted in dismissal therefore appropriate deductions were made from the compensatory award.

Advocate John Aycock is head of M&P Legal’s employment team with 35 years’ experience of labour law in three jurisdictions. Note this article is not legal advice, specific advice should always be taken on each case.

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