In Nayfeh v Barclays Bank UK Plc, the Employment Tribunal found the dismissal unfair after a sexual-harassment-related investigation and hearing with significant procedural flaws, even though one inappropriate sexual remark was ultimately found proved. The Judge criticised the employer’s failure to test credibility properly, the expansion of allegations without fair notice, and an unnecessary delay to outcome.
Since 26 October 2024, employers also have a new statutory duty to take reasonable steps to prevent sexual harassment. Tribunals can uplift compensation by up to 25% if that duty is breached, and the EHRC has updated its technical guidance and practical 8-step guide to reflect a more proactive standard.
What did the Tribunal say in Nayfeh?
- The Claimant was unfairly dismissed because the investigation and procedure fell outside the range of reasonable responses. The employer did not adequately test the complainant’s evidence, introduced additional charges without proper notice, and delayed the outcome by nearly five months.
- The Tribunal accepted that one sexually inappropriate remark was made, noted training and policies were in place, and applied reductions for contributory fault and a Polkey chance of fair dismissal, but still found overall unfairness because the fact-finding and process were inadequate.
The legal framework, in brief
- Equality Act 2010. Sexual harassment is unwanted conduct of a sexual nature that has the purpose or effect of violating dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment. Investigations and decisions must be anchored to this definition.
- Worker Protection (Amendment of Equality Act 2010) Act 2023. Since 26 October 2024, employers have a positive duty to take reasonable steps to prevent sexual harassment, with potential compensation uplifts up to 25% for breach. EHRC can enforce the duty.
- Employment Rights Act 1996 s.98 and British Home Stores Ltd v Burchell [1978] IRLR 379, EAT: Where dismissal for conduct is in play, employers need a genuine belief in misconduct, formed after a reasonable investigation, and a fair procedure with a decision within the band of reasonable responses. Nayfeh is a reminder that getting the process wrong can still render a dismissal unfair.
What “proactive” looks like in practice
Policies and training are necessary but no longer sufficient. The new duty expects employers to anticipate risks and design out foreseeable scenarios. Use this checklist as a starting point.
- Risk assessment specific to harassment: Map hotspots and situations with elevated risk, including hybrid offices, chat channels, mentoring, power imbalances, late-night deadlines, and social events involving alcohol. Build controls that are proportionate and practical.
- Design social events safely: Have clear standards, trained event leads, sensible alcohol controls, safe transport guidance, and quick escalation routes during and after events. Record the plan.
- Training that changes behaviour: Move beyond e-learning. Include bystander intervention, micro-behaviours, power dynamics, and manager confidence in handling disclosures. Refresh regularly and evidence attendance and impact. EHRC’s materials are a helpful baseline.
- Multiple reporting channels: Offer confidential routes, named contacts, anonymous options, and union or EAP signposts. Publicise protections against victimisation. Monitor trends and act on them.
- Triage and support: A quick, trauma-informed first response matters. Offer adjustments, separation of parties, and interim safeguards while fact-finding proceeds.
- Fair, thorough fact-finding: Nayfeh underlines essentials for credibility-based cases:
- Identify the live issues early and stick to them unless new matters are fairly notified.
- Test credibility and reliability of all key witnesses. Do not over-weight incriminating points or ignore exculpatory evidence.
- Avoid unnecessary delay. Keep parties informed and minuted.Invite, notice, and disclosure discipline: If allegations evolve, give the employee clear notice, provide documents that will be relied on, and offer an adjournment where needed. Nayfeh shows that adding charges late without proper notice is unsafe.
- Appeal that actually cures defects: An appeal can correct earlier flaws only if it genuinely re-tests evidence and addresses procedural gaps. A paper-thin review will not fix earlier unfairness.
- Third-party risks: The EHRC guidance emphasises planning for harassment by clients, customers and suppliers. Agree behaviour standards in contracts, train client-facing teams, and set escalation protocols.
Practical takeaways for HR
- Treat the new duty as a standing compliance obligation. Document your “reasonable steps” now. Auditors, regulators and tribunals will expect to see evidence, not intentions.
- In any investigation, write a credibility plan before interviews. Identify inconsistencies to probe on both sides and list exculpatory lines of enquiry to avoid one-sided fact-finding. Nayfeh shows how quickly an investigation can fall outside the reasonable range.
- Keep a harassment file: risk assessment, training records, event plans, comms, investigation templates, and outcomes tracking. This becomes your proof of reasonable steps if a claim arises.
Need help pressure-testing your approach?
The Tees Law Employment team can review your sexual harassment framework, run an investigation health-check, and train your managers on proactive compliance with the new duty. Get in touch for tailored support or follow for updates on UK employment law developments.
