[2024] UKUT 379 (AAC)

An investigation report carried out by the care home in respect of sexual harassment by LM to VM between June – December 2007. VM was concerned about events which had taken place during night shifts and phoned the Head Office of the care home to set out her concerns during this time in February 2008. LM was suspended from duty pending an investigation. A statement was produced (which is not attached to the investigation report that we saw). LM’s interview was however before us. This identifies that VM alleged:

LM followed VM and asked if he was married or had a boyfriend. He then asked whether she had ever “had a black man” and similar things.

He tried to touch and kiss her and would touch her breasts.

This happened most nights for the next few months.

She said she did not report it because she was embarrassed and did not know how to.

Other members of staff were questioned, and LM was interviewed. The investigation report identifies that there was no evidence to support the claims in relation to LM, with no dates at to when the alleged events took place, conflicting details about the allegations and no report to any college or others within the care home at the time in question. The investigation identified that no-one else was present at the time, and the investigation officer said that the matter was to be taken forward to enable full and proper investigation into the alleged assaults. LM said that VM had confided in him about her personal relationship during the time when the harassment was taking place. This report identifies that LM recognised that he had crossed acceptable professional boundaries as he hugged VM (with her consent). Correspondence from 2008 also showed that VM continued to choose to work with LM after this allegation was investigated despite her employer advising her that would not be sensible.

LM’s account is to deny the behaviours (which included grinding his groin into someone’s lower waist, approaching a colleague from behind and groping her breast, holding someone against their will and kissing them, and asking her about her marital status before identifying that he had “never tasted a white woman before” and asking if “she would be the first”. There was also an allegation that LM straddled this individual whilst she was lying on a reclining chair. He denied this. Her account (from the police report, which the DBS accepts is not as optimal a piece of evidence as, for example, a witness statement from the individual) was that he would try to touch her bottom and breasts as he went past her. He accepts that he did hug her.

Another allegation made at this time was asking to kiss another individual and holding her hands on this individual’s cheeks and turning her head). The third allegation was that LM advanced on her and touched her including her genital region.

LM’s explanation for this was that these allegations were malicious and provoked by a manager at the care home. He had offered and was paid £5 by this manager to pick up other staff and bring them to work – to avoid having to pay larger sums for a taxi. He says that when he asked for an increase in the monies to be paid to him (from £5 to £10) that these allegations emerged. LM also relies upon the fact that the police took no further action in respect of these charges and the internal investigation did not find them proven as demonstrating that he was cleared of all wrongdoing.

Unlike the DBS we had the benefit of hearing live evidence from LM. His evidence amounted to no more than a bare denial, and his explanation of why three different women would make such allegations seems to us to be implausible. The DBS submission was that the care home only investigated the incidents relating to one colleague and not two others, about whom not investigation took place. Moreover, the colleague who went to the police did so after the internal investigation. The DBS identified that it was unusual for someone who has falsely made an allegation in an internal investigation to then go to the police (which is what happened in this case) because she was unhappy with the internal outcome. The individual who complained to the police does indicate, as was set out in the police log that she was disappointed that no action was taken.

LM provided evidence from a manager who came to the home after the sexual assault has been reported. She was responsible for reintegrating LM after the investigation had finished. We did not give much weight to this information which postdated the actual incidents.

We consider that in the round, the DBS did not make a mistake of fact in reaching the conclusions that they did. They gave adequate weight to the lack of police investigation, and we consider that the outcome of the care home investigation is not determinative of the conclusions reached by the DBS that there was an attitude that LM has an entitlement to sex. We consider that the pattern shown in 2007 was similar to the pattern shown in 2018, and that similar things were said, in similar settings, towards similar colleagues.