Polytechnic and inadequate complaints procedure to deal with sexual harassment complaint—ex gratia payment

Polytechnic failed to have proper procedures in place to handle complaint from student concerning sexual harassment—Polytech agreed that it had not dealt with the matter with urgency and had an inadequate complaints procedure in place—ex gratia payment was offered to the student for this reason, not because the claims of sexual harassment had been made out, although there was an indication that prima facie a case had been made out that unacceptable behaviour by a tutor had occurred—Polytech apologised, offering ex gratia payment and undertook to improve its complaints handling procedures

A student enrolled in a polytechnic course left at the end of the first year in part because of what she considered to be ‘unacceptable sexual behaviour’ by a tutor.  Initially she had pursued the matter with assistance from a legal adviser and the Human Rights Commission. However, after commencing inquiries into her complaint, the polytechnic had advised that it was unable to complete its investigation because it had no adequate procedures in place to undertake such investigations. In addition, it appeared that the nature of the complaint was such that it did not fall within the jurisdiction of the Human Rights Commission at that time. The complaint referred to the Ombudsmen for investigation was the refusal of the polytechnic to investigate her complaint.

In the course of the investigation, it was learned that the polytechnic had made some attempts to investigate the complainant’s concerns about the tutor’s behaviour, but had felt it did not have appropriate procedures in place. Although it had discussed ways in which the matter might be advanced, these had proved fruitless. Eventually the polytechnic had interviewed several of the people involved in the events which had led to the student’s complaint about the tutor, but by then so much time had elapsed since the events, that it had proved impossible to complete an effective investigation.  

In the light of the facts which had been established it appeared that the student had made out a prima facie case that unacceptable sexual behaviour by a tutor had occurred. The student had attempted to bring her concerns to the attention of the polytechnic while she was still a student without success.

It was suggested that the polytechnic should remedy the situation by establishing as a matter of urgency adequate complaints procedures. It was also asked to consider making an ex gratia payment to the complainant with a view to compensating her not so much for the alleged unacceptable sexual behaviour as for the unavailability of a procedure whereby her complaint could have been investigated properly. The polytechnic accepted the findings and advised that a draft new set of complaints procedures had been prepared and was expected to be adopted shortly. It also made an ex gratia payment to the complainant.

This case note is published under the authority of the Ombudsmen Rules 1989 opens page in this tab. It sets out an Ombudsman’s view on the facts of a particular case. It should not be taken as establishing any legal precedent that would bind an Ombudsman in future.