Savage Garden bar: CCTV evidence crucial
A leading City law firm unfairly dismissed a senior associate for sexual misconduct after a defective investigation and disciplinary process, an employment tribunal has ruled.
It found the evidence supported one instance of misconduct – that he put his arm around a colleague – and that dismissal was not a reasonable response to this.
Fieldfisher also failed to give proper weight to clear evidence that a female colleague lied in her claim of what happened in a separate incident.
Djamshid Rustambekov was a senior associate in the dispute resolution team at Fieldfisher. He was dismissed in November 2023 as a result of two incidents.
First, it was alleged that in January 2023 he sexually harassed ‘Colleague 1’ by repeatedly inviting her to cancel her Uber and return with him to the office following a party organised by another employee.
Second, it was alleged that in July 2023 he had acted inappropriately toward ‘Colleague 2’ at a work party at the Savage Garden rooftop bar at a Hilton hotel near Tower Bridge, by following her to the toilets, placing his arm around her waist and waiting for her outside the toilet.
There was a third, more serious allegation of sexual assault involving Colleague 1 at the July party which was crucial to the case.
She claimed that Mr Rustambekov had been waiting for her outside the toilets and, when she left them, he grabbed and pulled her into the neighbouring disabled toilet. She said he locked the door, forcibly kissed her and tried to put his hand under her skirt before he let her leave.
Colleague 1 made a complaint about this, during which she referred to the January incident and also highlighted the solicitor’s conduct towards Colleague 2.
An HR manager investigated and recommended disciplinary action. Mr Rustambekov was suspended pending the outcome.
At a disciplinary hearing held by partner Ramatu Banga, Mr Rustambekov denied the allegations of misconduct.
His evidence was that, following a conversation in which Colleague 1 had confided in him about her feelings for another colleague, he “invited” her into the accessible toilet to continue talking in there. He denied grabbing and pulling her.
In relation to Colleague 2’s evidence, he noted that she had stated that he did not cross the line. He added that he did not recall touching her waist but that it would be inappropriate if he had.
The tribunal was critical of the failure to give the solicitor transcripts of the interviews conducted as part of the investigation, and also found that some of the evidence from them was “transposed inaccurately” into the report.
Further, a statement in the report that “there have been repeated references” of Mr Rustambekov acting inappropriately towards Colleague 2 did not detail who had said what.
Judge Anthony said: “Therefore, whilst the claimant did know of the charges against him, I find he could not have known of the nature of the evidence relied upon by the respondent. Neither could the claimant have been aware of the inaccuracies in the investigation report.”
The Hilton subsequently provided a written description of the CCTV footage from the accessible toilet incident. This said there was no evidence of force when the pair entered the cubicle.
It said: “According to CCTV it seems consensual from both sides. Female A initiates a hug, Male A honours this. They are hugging for quite a while then start kissing and Male A gently directs towards the disabled toilet while hugging. Female A does not resist, no force was used at all.”
Though Ms Banga considered this was inconsistent with the accounts given by both parties, she only questioned Mr Rustambekov about it.
The judge said it was “entirely odd that Ms Banga did not think it was important to question Colleague 1” about the discrepancies. This was a missed opportunity “to test Colleague 1’s evidence and motive in making these allegations”.
The Hilton said it would only release the actual footage if all individuals provided consent, and Colleague 1 refused after taking legal advice.
Before the tribunal, Ms Banga accepted that Colleague 1’s evidence about what happened immediately before entering the accessible toilet was false but concluded that this was not deliberate.
Judge Anthony said: “I find there is no other way to put this. Colleague 1’s version of events immediately before the accessible toilet incident is wholly unsupported by the CCTV footage description and wholly incredible.
“However, the issue is whether she deliberately gave false evidence. Having given careful consideration to all of the documentary and oral evidence, I can find no basis to underpin Ms Banga’s reasoning that Colleague 1 did not deliberately give false evidence.”
Colleague 1 had continued to present an account which contradicted the CCTV footage description and, even though she said she no longer had a clear recollection of what happened, “she nonetheless continued to allow those allegations to remain live” and withheld consent for the release of the CCTV footage despite being “fully aware” it would have shown Ms Banga what had happened.
This “severely damages her credibility as a witness of fact”, the judge held.
Ms Banga also spoke to other colleagues of Mr Rustambekov at his request, who said they had no concerns about his behaviour. The evidence indicated a flirty atmosphere among staff, who often played the game ‘Snog, marry, avoid’ about their colleagues.
Mr Rustambekov issued a grievance but in a letter with the outcome of both the disciplinary and grievance procedures, Ms Banga said she had decided he should be dismissed.
She found that WhatsApp messages provided “clear contemporaneous evidence” to support the January allegations – and that his conduct had an “underlying sexual motive” – and the evidence supported the allegations of his unwanted attention towards Colleague 2.
She said she had been unable to reach a conclusion on the incident in the accessible toilet but explained that the claimant’s evidence on it remained material to her decision to dismiss.
Mr Rustambekov unsuccessfully appealed internally before bringing the tribunal claim.
He said the disciplinary outcome letter was the first time he had been told about the WhatsApp messages and refuted that they showed what Ms Banga had found.
Judge Anthony held that “an employer acting reasonably in a disciplinary process, would have put the additional evidence obtained to the employee for comment before a final decision.
“I find this was particularly important when contextualised to the facts of this case, namely Ms Banga’s own concession in her oral evidence that Colleague 1 had given false evidence regarding the accessible toilet incident.
“I find, as also acknowledged by Ms Banga in her disciplinary outcome letter, the WhatsApp messages do not state what happened on the night of the January 2023 incident. I find there is nothing within the WhatsApp messages to indicate that the claimant invited Colleague 1 to go back to the office and that there was an underlying sexual motive to that invitation.”
Ms Banga also failed to put to Mr Rustambekov her finding that his conduct was due to Colleague 1’s gender.
The judge went on to rule that “the general evidence is wholly insufficient to counteract ‘the negative pull’ of Colleague 1’s lies” – a reference to Supreme Court guidance on how a fact-finding tribunal should deal with the impact of lies on the evidence.
She said: “This is because the general evidence indicates that the claimant’s behaviour was not considered inappropriate by many other colleagues. I conclude that the negative pull of Colleague 1’s lies is such that her allegation that the claimant harassed her in January 2023 is wholly undermined.”
Judge Anthony held that, in relation to the Colleague 1, Fieldfisher did not follow a reasonably fair procedure and therefore did not have reasonable grounds for its belief in Mr Rustambekov’s misconduct – the appeal process “did not cure the defects of the procedure”, she added.
She highlighted in particular the failure to give adequate weight to the discrepancies in Colleague 1’s evidence with the CCTV footage as well as “evidence of flirting between Colleague 1 and the claimant”.
The decision to dismiss him on the basis of two serious incidents in six months was also unreasonable as “it is clear the respondent did not speak to the claimant immediately or in the period post the January 2023 allegation to inform the claimant that his behaviour was unacceptable”.
In reaching this decision, “I have taken into account the size and administrative resources of the respondent”, an international law firm “with an adequately resourced HR department”.
Colleague 2 made no formal complaint and, during the initial investigations, indicated that she did not feel Mr Rustambekov had overstepped the mark or made her feel uncomfortable. There was, however, “sufficient evidence” to suggest he did have his arm around Colleague 2, the judge said.
But, on its own, as a first offence, this would not have been enough to justify dismissal.
Judge Anthony upheld the claim for unfair dismissal. A remedy hearing will follow.
In a statement, Fieldfisher said: “We are disappointed by the employment tribunal’s ruling. While we do not agree with the findings, we will take the time to reflect on the judgment and consider our next steps.
“We do not tolerate inappropriate behaviour at Fieldfisher. We stand firmly by our decision to have taken decisive action against it in this instance and will continue to do so going forward.
“Still, in light of the ruling, we will be reviewing our internal disciplinary procedures to ensure that our response to instances of inappropriate behaviour is thorough and robust.”
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