January 12, 2022

In Litigation, as in so much else, Prior Planning and Preparation Prevents P Poor Performance.

This is the essential element of seeking out information, witnesses and any supporting documentation.

This is all vital as every Judge expects at least one of the parties in any litigation to be lying (notwithstanding a potential life sentence for Conspiracy to Pervert the Course of Justice) at least some of the time.

So it is vital to support assertions with evidence, otherwise one generally loses.

Obviously, the larger and wealthier the organisation, the more one can expect such processes to be more assiduously observed.

Indeed, in the Employment Tribunal, a certain amount of slack is cut for small organisations without many resources, as it is for litigants-in-person.

This all seems to accord with common sense.

Enter Her Majesty’s Government, in this case, the Foreign, Commonwealth and Development Office (whose employees do not deign to be described as mere Civil Servants, but who rather are lofty Diplomats), and its glove puppet, the British Council.

Sellers v Secretary of State for Foreign, Commonwealth and Development Affairs

Paul Sellers was a senior member of the British Council and the Head of its Italian operation, still one of the plumb postings along with Paris and Washington.

Clearly a man favoured by his employer. 

And yet…

At a Christmas party in 2018 in his (British Council) flat for his (British Council) colleagues, he was accused of sexually molesting a female employee (identified only as ‘ZZ’) by kissing her on the lips and caressing her breasts.

Before any investigation was carried out, one Ken O’Flaherty, Deputy Head of Mission at the British Embassy, publicly stated that the groping had occurred and was ‘clearly deliberate’.

Just in case anyone had missed his fellow feeling and support for Mr Sellers he added that Sellers had been ‘uncharacteristically emotional’ over preceding months, that he was ‘quite drunk’ at the party, and more helpfully:

‘Paul regularly drinks at professional events. I have not seen him incapacitated, but he does show the effect of alcohol and consumes more of it than many colleagues.’

As a result of the allegations, the deputy CEO of the British Council, Jane Ewart-Biggs, scion of an unimpeachable diplomatic family, investigated and concluded that Mr Sellers was guilty, entirely on the basis of speaking to both him and ZZ and choosing to believe ZZ.

Job done, another sexual predator brought to book. And yet…

As it transpired, Ms Ewart-Biggs chose to ignore the facts that Mr O’Flaherty pre-judged her investigation, and the fact that the tale told by ZZ changed constantly.

Rather more germane was the fact that other guests at the party provided witness statements which flatly contradicted ZZ’s version of events, stating that her farewell from the party was the same as everyone else, a peck on both cheeks in Italian style.

Six witnesses provided practically identical statements, all supportive of Mr Sellers, in his appeal against dismissal to Sir Ciaran Devane, the then Head of the British Council.

All were ignored, and none referred to in his judgement.

It, therefore, comes as no surprise that Mr Seller’s unfair dismissal claim has succeeded, with some appropriately caustic comments from Employment Judge Graeme Hodgson describing the investigation ‘characterised by serious oversights and unreasonable assumptions’ and, quite rightly, stuck the boot further in:

‘No reasonable employer would have failed to seek the relevant contemporaneous documentation, or to explore the circumstances of the alleged assault, or to seek relevant evidence from witnesses…I can see no rational basis on which it could continue to find there had been a sexual assault.’

Mr Sellers can no doubt expect a very lucrative Remedies Hearing later in the year.

Or, if the FCDO has any sense, a confidential settlement to keep this further out of the press.

After all, Her Majesty’s Government can hardly relish the fact of again being labelled as unreasonable and incompetent, although it does seem to be the fashion now and, as I can personally attest, 30 years ago.

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About the author 

Aidan Loy

Aidan is a highly experienced employment solicitor with a wealth of expertise gained from firms such as Stephenson Harwood, DLA and Hill Dickinson.