Harassment and Hearsay Evidence

Difficulties often arise evidentially in cases where an employee alleges they have been harassed. Alleged incidents of harassment often take place away from other employees; this makes proving or disproving such allegations difficult. In a case before the Employment Appeals Tribunal, an examination of the quality of evidence had to take place to determine whether a finding of harassment made by the Tribunal could be sustained.

In the instant case, the employee worked for a housing association. The employee was under investigation in respect of her behaviour towards a tenant of the housing investigation. The employee presented her own complaint that the investigating officer had tried to lead the tenant in her investigation, insinuating that the employee had physically or sexually taken advantage of her. The employee gained this information from later speaking with the tenant. She subsequently presented a complaint alleging that she had been harassed on the grounds of her sexual orientation.

Neither the tenant nor the investigating officer attended the Tribunal to give evidence. The officer’s investigatory notes taken at the time were disregarded, whereas the employee’s evidence on her alleged conversation with the tenant were accepted. A finding of harassment was made.

Before the EAT, it was held that this decision was flawed. There was no good reason for excluding the officer’s contemporaneous evidence which had not been challenged in evidence. It appeared that the officer’s failure to attend the hearing automatically resulted in the Tribunal disregarding the evidence, despite there being a signed witness statement, direct evidence from the time of the investigations and a seemingly good reason for the officer’s non-attendance. On the contrary, the EAT concluded that the employee’s evidence was hearsay. The basis of the claim was the alleged comments made by the investigating officer. In the employee’s conversation with the tenant, the tenant relayed what had allegedly been said by the officer to the employee, who in turn presented this evidence to the Tribunal. This was clearly hearsay evidence, which materially affected the value and weight of the evidence before the Tribunal.

In the circumstances, the case would have been remitted back to a fresh Tribunal to reconsider the matter; however, the claim had also been presented out of time and, for this reason, the claim was dismissed. The case highlights the importance of assessing the quality of evidence available in determining the prospects of success of a claim. Whilst harassment by hearsay is possible, it does appear more difficult to persuade a Tribunal that the case is made out where there is more contemporaneous evidence available.