How do employers deal with historical allegations?

Historical allegations and fair investigations

The importance of understanding the responsibility of a fair investigations when dealing with workplace misconduct has been highlighted again by a new case that is making headlines.

On the face of it, many would think the termination of a legal secretary for making homophobic comments would be a slam dunk termination with no fear of reprisal. However, due to a mishandling of the investigation process the dismissal was found unfair resulting in compensation being awarded to the employee.

The dismissal of a legal secretary who made homophobic comments was unfair

The dismissal of a legal secretary who made homophobic comments was unfair because of the way her employer ran the disciplinary process an employment tribunal has found.

Ms Rootes was employed as a legal secretary at Brighton-based Edward Harte Solicitors, and was accused by a colleague of making homophobic remarks including stating that she would never speak to a lesbian because “it’s a deadly sin” and that she was “okay with gay men but not gay women”. 

Ms Rootes also used derogatory language describing a lesbian colleague as “repulsive” and refused to work alongside the colleague during working hours.

Although the comments made were condemned by the tribunal, with the judge declaring that the views held by Ms Rootes were, ‘unpleasant and personal’, due to a process flaw during the disciplinary process, the dismissal was ultimately deemed unfair.

The tribunal was provided with a historical account of Ms Rootes conduct who stated to the tribunal that she had received “a traditional upbringing including in relation to the role of women in society” as part of a strategy to mitigate her views and provide a reasoning behind why those views were held.

Historical allegations

In 2013, Ms Rootes received a written warning for saying that a fee-earner had “a chip on her shoulder, she’s half-caste”.

In 2021, another colleague reported homophobic comments made by Ms Rootes and she was invited to a disciplinary hearing as a result.  During the disciplinary hearing the comments made in 2013 were raised and discussed with Ms Rootes who was claiming she could not recall whether she had in fact made the comments alleged. She was questioned over several historical allegations and due to the passage of time claimed that she could not recollect her comments.

The manager of the disciplinary hearing concluded that Ms Rootes was not being honest about her recollections in an attempt dissuade the manager from any wrongdoing. 

The outcome of the disciplinary resulted in her dismissal and one of the points mentioned was that she had not frankly and honestly responded to the historical allegations raised. Ms rootes appealed and the dismissal decision was upheld.

Unfair investigation

The reason why the investigation was found to be unfair was that the tribunal stated there was an over reliance upon her recollection or lack of recollection, for allegations that went back eight years.

During an investigation process, it is important to be balanced and also to consider mitigation circumstances, such as the passage of time. The willingness to hinge an opinion about Ms Rootes honesty on historical allegations that she failed to recollect meant that the investigation unfairly determined that she was in fact acting in a dishonest manner when in fact she simply may not have been able to remember.  The firm should have lent more weight to contemporaneous evidence.

As a result, the dismissal was found to be unfair. Had the process excluded the historical allegations it is likely that the dismissal would have been deemed fair and Ms Rootes would not be receiving any type of compensation award.

This case highlights the need to carefully consider what weight managers put on historical allegations and how an over reliance can lead to procedural unfairness.

Properly assess the evidence in a reasonable way

It is really important that those conducting any type of misconduct process properly assess the evidence in a reasonable way. Quite often, when dealing with distasteful allegations it can be tempting to assume that the dismissal would be deemed fair particularly when the allegations are clear cut and evidence. However, historical allegations should not be given too much weight and this principle should be applied across all evidence. Any assessment should be looked at in a balanced way with an equal view of any mitigating circumstances.