Workplace Misconduct
The CBI has hit the headlines recently amid serious allegations of rape and sexual misconduct at the organisation.
Tony Danker was the Director General at the organisation from November 2020 and has informed the media that his dismissal has left his reputation in tatters. We should make it clear that many of the allegations pre date his arrival, although some of the allegations that were reported to the Guardian earlier on this year relate directly to him as well as a board member of the CBI. Employees at the CBI apparently reported their concerns to the Guardian as they felt the CBI had not, or would not, deal with their concerns properly.
The CBI outsourced the investigation to a law firm, and the first phase of the investigation related to the allegations brought against Tony Danker. We understand that the report was presented to the Board just before the Easter break and that Tony Danker was dismissed instantly.
The story raises some important issues in the employment law sector.
"He has apologised for making staff feel “very uncomfortable” and stated that this was not his intention, but he also considers that he has been used as a scapegoat for the wider, more serious allegations about other staff members, including an allegation of rape."
In this case, it seems that the CBI made the decision to dismiss Tony Danker after receiving the report, but without testing the allegations at a hearing where Danker would usually be provided the opportunity to contest any of the findings.It is rare that an employer would be bold enough to dismiss without allowing the employee to give their side of the story; these types of dismissal are usually reserved for incidents where the employee admits to the allegations during the investigation, and there is no possible explanation that an employee could give that would excuse the conduct. Even in such cases, there are significant risks that the employer will not have acted ‘reasonably’ in dealing with the dismissal.This then drastically increases the risk that a tribunal might find the dismissal unfair and, under the ACAS Code, any award of compensation would attract a potential 25% uplift.
Given his seniority, we expect that Danker had a long notice period, and he could also bring a claim for wrongful dismissal in addition to an unfair dismissal claim, and if successful he would be awarded his notice pay in addition.
Whilst we do not know the whole story regarding the allegations of harassment, it is clear that some members of staff complained about Danker’s conduct. He has apologised for making staff feel “very uncomfortable” and stated that this was not his intention, but he also considers that he has been used as a scapegoat for the wider, more serious allegations about other staff members, including an allegation of rape.
"...staff are protected against “unwanted conduct” relating to their sex which has the purpose or effect of violating their dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for them. The intention of the alleged harasser is not determinative of whether harassment has taken place, or not."
During his interview with the Today programme (19 April 2023), Danker was reminded that, under the Equality Act, staff are protected against “unwanted conduct” relating to their sex which has the purpose or effect of violating their dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for them. The intention of the alleged harasser is not determinative of whether harassment has taken place, or not. Danker was however right to observe that a tribunal would consider whether it was reasonable for a complainant to consider that the behaviour amounted to harassment as well as taking into account the complainant’s perception, if it accepted that it was not Danker’s purpose to harass.
In this case, staff reported the allegations of rape and sexual harassment to The Guardian. Most Whistleblowing policies encourage staff to raise concerns internally, rather than externally. If staff disclose particular concerns which they reasonably believe to be genuine and in the public interest, they are protected from retaliation at work. Exceptionally, staff are protected if they raise these concerns externally if they can show, for instance, that they tried to raise concerns internally but they were not dealt with (properly, or at all). Staff with legitimate concerns regarding unlawful practices in the workplace should be encouraged to raise these concerns internally so that the organisation can properly consider the nature of the complaints and take the appropriate remedial action where necessary. If staff feel that they genuinely need to alert the press to wrongdoing, this is a pretty poor indictment of what the work culture is like.
The headlines paint a picture of an organisation with a significant cultural problem (at least in certain areas). If these allegations are correct, it was incumbent on Danker, in his senior position, to lead by example by demonstrating a clear understanding of what harassment is and behaving in a way which shows that it is not tolerated, in any form.
It should also be noted that the government is supporting the Worker Protection (Amendment of Equality Act 2010) Bill which will:
Make employers liable for acts of all types of harassment related to a protected characteristic carried out by third parties (e.g. customers or suppliers), and
Put a positive duty on employers to specifically prevent sexual harassment in the workplace and give employment tribunals the power to uplift employees' compensation for sexual harassment where a breach of that duty is found.
The Bill will come into force one year after it is passed.
Whilst the Bill is not yet law, it is likely to be passed and will be introduced in due course. This is even more reason why organisations should consider the culture within their own workplaces and ask whether staff are fully aware of what their obligations are; this will mean training employees on what constitutes harassment. However, even if an organisation has the right policies and has carried out relevant training, this will not protect an organisation from a culture which does not take steps to address the root cause of the problem.
At Horsfield Menzies, we have a team of lawyers who can give expert legal advice on issues of this nature. We also have a dedicated Workplace Investigations team who are experienced in dealing with sensitive investigations into sexual harassment as well as a number of experienced HR Consultants who can work with employers to design and implement programmes to improve workplace culture. If you require any assistance, please do get in touch.