Indecent Exposure Allegations: Why the Employment Tribunal Declared British Airways’ Dismissal Unfair

Allegations of sexual misconduct in the workplace are among the most serious issues employers can face. When they involve accusations of indecent exposure, the potential reputational, legal, and safeguarding implications can lead employers to act quickly and decisively. 

However, as the recent case of Mr Dalkiran v British Airways plc demonstrates, acting swiftly doesn’t always mean acting fairly. The case provides a reminder of the importance of proper investigation, reasonable belief, and procedural fairness when dismissing an employee accused of misconduct.

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The Facts of Mr O Dalkiran v British Airways plc

Indecent Exposure Claim Background

The Claimant, Okan Dalkiran, had worked as a cabin crew member for British Airways (“the Respondent”) for 26 years. The dispute arose following an allegation that he’d exposed himself to a colleague in August 2023 while the two were resting in crew accommodation. 

According to the evidence presented to the tribunal, the incident allegedly occurred in a rest area used by airline crew. A female colleague, referred to in the judgment as “X”, claimed that she saw the Claimant exposing himself and masturbating while they were sleeping in adjacent bunks. She reported the alleged incident to management the next day.

Investigation and Criminal Proceedings Launched

Following the complaint, the Respondent launched an internal investigation. The Claimant was arrested on 2 September 2023 and charged with intentionally exposing himself, intending to cause alarm and distress. He was then suspended by the Respondent later that month. However, the Respondent decided to pause the investigation, pending the outcome of the criminal proceedings. 

The Claimant denied the allegation throughout the process. He asserted, “I do not know who she is, it’s possible it happened there but wasn’t me.”

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Regarding the criminal proceedings, the Claimant was bailed, and in November 2023, he was found not guilty of the offence. The Magistrates considered the body-worn camera footage of the location and lighting. It also took into account the fact that other individuals were present, but didn’t see or hear what X did.  

Claimant Dismissed for Indecent Exposure

Following the end of the criminal case, the Respondent restarted the investigation. The internal investigation was overseen by a disciplinary manager, who reviewed the complainant’s account alongside the Claimant’s denial. In assessing the evidence, the decision-maker placed particular emphasis on the complainant’s credibility and the emotional impact the alleged incident appeared to have had on her. The manager also accepted the complainant’s explanation that the incident occurred approximately 15 minutes after she entered the room, and relied on the fact that the complainant had messaged a friend shortly after the incident, which was treated as corroborating evidence of her distress at the time. 

The Claimant maintained throughout the disciplinary process that the allegation was false. During the investigation, his representative raised possible explanations for the complaint, including potential misunderstandings or motivations for the allegation. However, the disciplinary manager dismissed these suggestions, considering them as attempts to undermine the complainant’s credibility. 

Another factor considered during the disciplinary process was the Claimant’s arrest. The investigator noted that he had been arrested while in a British Airways uniform and escorted through the airport. The company argued this could have damaged the airline’s reputation. 

Following the investigation and disciplinary hearing, the decision-maker concluded that the complainant’s account was more credible than the Claimant’s denial. On that basis, the employer determined that the alleged misconduct had occurred and the Claimant was dismissed for gross misconduct on 9 April 2024.  

The Claimant exercised his right to appeal the decision through both a first and second stage appeal process. The appeal hearings were conducted by different managers and took place in early May and August 2024. During the appeals, the Claimant addressed several aspects of the disciplinary findings and challenged the reasoning behind the dismissal. However, the appeal managers ultimately upheld the dismissal decision.  

The Employment Tribunal’s Judgment  

Under the Employment Rights Act 1996, employees with the required length of service (currently 2 years) have the right not to be unfairly dismissed. When an employer dismisses an employee for misconduct, the tribunal considers several key questions, including: 

1. Did the Respondent have a genuine belief in misconduct? 
2. Was that belief based on reasonable grounds? 
3. Was there a reasonable investigation? 

These questions come from the case of BHS v Burchell (1978) and are therefore referred to as the “Burchell test”. Tribunals will examine the employer’s decision to dismiss and whether that decision fell in the “range of reasonable responses for a reasonable employer.” The tribunal will not examine whether the Claimant actually committed the misconduct.

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In this case, the tribunal found that the investigation had relied heavily on the complainant’s apparent distress. While this reaction was understandably taken seriously, the tribunal held that this alone was insufficient to establish misconduct without a proper review of the evidence.  

Additionally, the tribunal criticised the employer for failing to: 

• Adequately examine evidence from the criminal proceedings
• Test the plausibility of the complainant’s version of events
• Gather further corroborating evidence before making its decision

Ultimately, the tribunal concluded that the employer’s belief in the alleged misconduct was not reasonably formed, meaning the dismissal fell outside the “range of reasonable responses” open to an employer in the circumstances. As such, the unfair dismissal claim was upheld.

Workplace Allegations and the Importance of Proper Investigations 

One of the most significant lessons from the alleged indecent exposure case concerns the quality of workplace investigations. The tribunal emphasised that employers must take allegations of serious misconduct seriously, but must also ensure that investigations are thorough, impartial, and evidence-based. In cases involving allegations of sexual misconduct, tribunals often recognise that employers must protect: 

• Other employees 
• Workplace safety 
• Organisational reputation

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However, these considerations do not remove the obligation to conduct a balanced and evidence-based investigation. Tribunals do not expect investigations to be perfect, but they must be reasonable and proportionate to the seriousness of the allegation. In this case, the tribunal concluded the Respondent’s process had not met this standard.  

Criminal and Employment Law: The Overlap

There’s no rule that someone ought to be dismissed because they’re investigated for, charged with, or convicted of a criminal offence. The Acas Code states:

“If an employee is charged with, or convicted of a criminal offence this is not normally in itself reason for disciplinary action. Consideration needs to be given to what effect the charge or conviction has on the employee’s suitability to do the job and their relationship with their employer, work colleagues and customers” (paragraph 31).

A potentially fair reason for dismissal in these circumstances might be conduct, or “some other substantial reason” (“SOSR”), where the trust and confidence may have broken down, or there is a serious concern of reputational risk.

An employer doesn’t strictly need to wait for the outcome of a criminal trial before taking action. However, a tribunal will consider whether it was reasonable/appropriate for it to do so.

For example, in Harvie v Scottish Ambulance Service Board, the Claimant, an ambulance driver, was attacked by a civilian while on duty. In response, he hit the individual, claiming it as an act of self-defence. His employer, however, dismissed him before criminal proceedings had concluded. The Claimant requested that the disciplinary hearing be postponed until after such time, and to be accompanied by a solicitor at the hearing, but both were refused.

The employer proceeded with the disciplinary process, ultimately dismissing him on the basis that he could have acted differently and had brought the organisation into disrepute. Notably, the criminal case was later dismissed after CCTV footage demonstrated that the Claimant had acted in self-defence. The employer hadn’t waited to obtain or review this footage, though, before making its decision. As such, when assessing the fairness of the employer’s process, the employment tribunal upheld the Claimant’s unfair dismissal claim.

The Indecent Exposure Case: Our Final Thoughts

Cases like Mr O Dalkiran v British Airways plc and Harvie v Scottish Ambulance Service Board illustrate the balance employers must strike when serious allegations arise. While criminal conduct or accusations can justify investigation and, in some circumstances, dismissal, employers must still ensure their disciplinary processes are thorough, fair, and evidence-based.  

Employees who believe they have been dismissed unfairly in such complex situations can benefit from the guidance of specialist unfair dismissal solicitors, who can help navigate both the procedural and legal challenges of bringing a tribunal claim.

For expert employment advice in circumstances like the indecent exposure case, consider Redmans Solicitors. Our team of experts is here to help. Following a quick chat, we can answer your queries and discuss your possible options going forward.

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