Mr Sellers was accused by an employee of the British embassy of drunkenly kissing her twice on the side of her mouth (rather than the cheek) and stroking her breasts when saying goodbye at a Christmas party hosted in his flat. Mr Sellers maintained that he kissed the complainant on each cheek, a traditional Italian greeting/farewell. The British Council investigated the complaint and following an investigation, dismissed Mr Sellers for gross misconduct.
The Tribunal found that Mr Sellers' dismissal was unfair due to serious flaws in the investigation process, including that:
- The investigator took a "narrow view" based on the complainant's account, failing to adequately explore it and consider the surrounding circumstances.
- The investigator failed to identify the existence of contemporaneous documents.
- Adequate consideration was not given to Mr Sellers' explanation. There was no finding as to whether he had kissed the complainant on the side of her mouth and if so whether that was different to kissing her on the side of her lips.
Mr Sellers had appealed against his dismissal. The Tribunal found that the appeal process did not adequately identify the deficiencies in the investigation and the investigator's overall approach. As a result, the appeal did not remedy the flaws in the original decision.
The British Council's appeal against the Tribunal's decision was heard by the Employment Appeal Tribunal on 12 November 2024. The decision is likely to come out during 2025. Whatever the outcome, the case serves as a useful reminder to employers of the importance of conducting thorough and fair investigations into allegations of misconduct, including considering employees' explanations with an open mind. Where sexual misconduct is alleged, it's tempting for employers to cut corners in their investigation in order to demonstrate a "zero tolerance" approach. However, doing so can expose the business to considerable legal risk, as this claim demonstrates.
With Christmas party season in full swing, employers would also be prudent to remember that employers are liable for their employees’ acts both at work and at work-related social events. What might seem like an innocuous act to one person (i.e. kissing a colleague on each cheek) may not be viewed that way by another. Employers should communicate a clear policy on acceptable workplace conduct, including social events and ensure employees feel comfortable reporting any concerns or incidents.
Employers are reminded that since October, they are under a new proactive duty to take reasonable steps to prevent sexual harassment. The beefed up duty to take all reasonable steps set out in the Employment Rights Bill will come into force no earlier than 2026, but employers should already have risk assessments and procedures in place (see our more detailed guide here).
Want to hear more from us? 
