Lord Rennard is not an employee – and that is something he should be relieved about.
He has been investigated under the Liberal Democrats membership rules, which allow a member to be expelled for conduct which brings the Party into disrepute. The Disciplinary procedure allows (but does not require) an independent investigator to be appointed to gather evidence prior to a disciplinary hearing they chose to appoint a leading criminal fraud QC – Alistair Webster.
Under the rules his role is to look at written evidence and compile a charge sheet – or to indicate that ‘there is insufficient evidence to proceed’. This is what he has done and you can read his conclusions here.
He has concluded that there is less than a 50 per cent chance that a charge against Lord Rennard could be proved to the requisite standard. The Disciplinary Procedure makes it clear that the issue is whether the charge has been proved ‘beyond reasonable doubt’. His conclusions state:
‘it is unlikely that it could be established beyond reasonable doubt that Lord Rennard had intended to act in an indecent or sexually inappropriate way. Without proof of such an intention, I do not consider that such a charge would be tenable.’
Really? I am no expert on the constitution of the Liberal Democrats, but all I can see in their rules is talk of conduct which is likely to being the party into disrepute. I can see nothing that suggests that such conduct needs to be deliberate. Surely sexually inappropriate behaviour could bring a party into disrepute whether it was deliberate or not?
The investigation makes no findings of fact, it has merely gathered evidence. So I don’t know what was actually said or done by Lord Rennard. However if credible allegations have been made that he behaved in a way which ‘violated the personal space and autonomy’ of the complainants then it seems surprising that an investigator can conclude that there is insufficient evidence to proceed because it can’t be proved that Lord Rennard was doing that deliberately.
The standards being applied to Lord Rennard are certainly very different to those that would be applied to an employee in a similar situation. First of all, in determining disciplinary issues, we steer well clear of slippery concepts such as ‘beyond reasonable doubt’. That is the standard to be used in a criminal prosecution. In employment law we worry about whether the employer has an ‘honest belief’ in the guilt of the employee and whether that is based on ‘reasonable grounds’.
If Lord Rennard was being sued for sexual harassment – and I don’t know if that is even a possibility in this case – we can certainly say that the case would not turn on whether he intended to act in an indecent or sexually inappropriate way. His intention would not actually be relevant. The question would be whether he engaged in unwanted conduct, related to sex, which violated someone’s dignity or created an ‘intimidating, hostile, degrading, humiliating or offensive environment’ – see S.26 of the Equality Act 2010.
If we limited sexual harassment cases to those where we could show that the perpetrator intended to act in that way then nothing would ever be proved. In the modern workplace you have a duty to make sure that you behave in an appropriate way and that your conduct does not amount to harassment. If you aren’t able to see how your conduct may be perceived by others then you are a tribunal claim waiting to happen. Employers are entitled to dismiss employees who behave in a way that exposes them to this sort of liability, and they do not need to prove any intention on the employee’s part to behave indecently.
The problem the LibDems now have is that having appointed an independent investigator, they are rather stuck with his conclusions- even if they mean that no proper hearing is ever held into what he described as ‘broadly credible’ allegations. I’m sure that Alistair Webster is a brilliant lawyer and advocate, but it does not seem that his main area of expertise is in the realm of workplace harassment. It may be that had the Lib Dems appointed an employment lawyer to carry out the investigation, the conclusion would have been different.
And probably cheaper.
UPDATE 20 January, 17.20
This afternoon the Lib Dems announced that they were suspending Lord Rennard pending disciplinary proceedings based on his failure to apologise. It’s not clear whether there is going to be a whole new investigation or whether the matter will go straight to a disciplinary meeting.
It’s difficult to avoid the feeling that’s this is all getting a bit messy. The danger for the Lib Dems is that it will look like a case of ‘well we can’t get him on X but perhaps we can get him on Y’. I’ve seen employers do that in relation to disciplinary matters and it rarely ends well. The question has to be why you want to take disciplinary action, not what grounds you can find to support the disciplinary action you want to take. In Lord Rennard’s case the hearing will have to focus on his refusal to apologise for incidents that have not themselves been the subject of disciplinary proceedings. Surely in order to take a view on his refusal to apologise you have to take a view on the truth or otherwise of the allegations that are prompting the calls for an apology?
The Lib Dem ministers in BIS are very keen on alternative dispute resolution. This case seems to be a good candidate for a dose of that. Unless somebody gets a grip on this it will simply drag on for months and end in the courts. No-one is emerging well from what is starting to look like a debacle.