ET Fell into Substitution Trap in Sexual Harassment Case


It is the role of an Employment Tribunal (ET) to make findings on the evidence, not to substitute its own views for those of the employer. A case involving serious sexual harassment allegations provided a textbook example of an ET falling into the so-called substitution trap.

Following an investigation and a disciplinary hearing, a man who was employed in a local authority leisure centre was summarily dismissed following a finding that he had sexually harassed a female colleague. The decision-maker further found that he had acted in a verbally abusive and aggressive manner towards her and subjected her to a physical assault.

In later upholding his unfair dismissal claim, the ET found that the investigation was not the even-handed and fair process it should have been. Proceeding on the basis that the man and woman had given conflicting accounts of a crucial remark that he was alleged to have made, it found that the decision-maker did not have reasonable grounds for considering him guilty of sexual harassment.

Allowing the local authority’s appeal against that outcome, the Employment Appeal Tribunal (EAT) noted that the decision-maker had found no such conflict in their accounts in that the man had stated that he had no memory of what he had said. Despite having warned itself against the risk of falling into the substitution mindset, the ET had nevertheless proceeded to do exactly that.

It failed to properly engage with the basis upon which the decision-maker made his decision or to acknowledge the evidential picture that was actually presented to him. It assumed a basis for the decision that did not feature in the explanation provided in the dismissal letter. It thereby substituted its own view of the crucial interaction for that of the decision-maker.

In also overturning the ET’s ruling that the man was wrongfully dismissed, the EAT found that it had simply disregarded potentially probative documentary and indirect oral evidence presented by the local authority. The case was remitted to an ET for reconsideration. The EAT heard further argument as to the terms of that remission.

Share this article