How the Corporate Disciplinary Process can be abused in the UK
Unicredit beats senior analyst 's harassement challenge - The facts
This paper is entirely based on information disclosed during the Court hearing which was public. This information was disclosed in testimonies, written witness statements and/or other official court documents. With solid academic credentials, I, Paul Gex, have worked in Finance for 23 years in a number of different roles, have always enjoyed working and have always thrived to meet my professional responsibilities while maintaining my integrity and good working relationships with my work colleagues. I worked at Unicredit Bank (Unicredit) for more than 12 years as a Director in the structured finance credit department, only to be unfairly dismissed following unsubstantiated allegations of stalking and despite providing Unicredit with clear evidences that these allegations had been, for some undeniably and others very likely, fabricated. Below is what happened in necessary details: In 2013 I met Afia Khanum, who worked in compliance (KYC) at Unicredit, while moving floor in the offices of Unicredit London. She was sitting on the row of desks my team was to be moved to, when I met her. I talked with her briefly five times (which I documented in an email to my manager, at a time my memory of these conversations was still fresh). However, during the course of these very limited conversations, it became quickly obvious that she was not interested in talking. I accepted this fact and moved on. I honestly felt that there was nothing to be missed. In particular, after the last time I talked with her, I never approached her, talked to her or contacted her in any way afterwards (whether through physical contact, eye contact, email, text or phone) and there was never any evidence to the contrary. However, a few weeks later, I was informed that Afia Khanum (AK) had complained to her manager and HR about me and the claim was that I was following her around the office, to the kitchen, to the toilet, to the lift and to the Moorgate tube station. At the time, there were numerous allegations against me, in emails to her manager, colleagues and HR and in an interview with HR, on which I was given no details whether in 2013 or 2015. She even told about her fear that I would try to pick her children up at their school. Two of her teammates had witnessed me allegedly following her (when interviewed in 2015, neither was able to recall my hair colour, let alone whether I had hair or not). One, who had moved temporarily to our floor for this purpose, had witnessed me allegedly following AK to the kitchen and emailed to his manager a clearly biased description of what he had seen. I was made aware of it only in 2018 through the ET3 (Unicredit court documents) and strongly disagree with his interpretation. Another employee said she had witnessed me following AK to the kitchen several times. She also said I was waiting for her in front of the Unicredit building in front of which I would never stop except to talk to a person I knew. AK consistently appears to have imputed a harassing motive onto my doing ordinary things and, these witnesses, including her manager, seem to have done the same after listening and accepting, without reservation, her stories, if only because she was a woman, a small one, a mother and part of their team . How could they be so sure that what they had seen could not have been a coincidence? But more importantly how can one act as a reliable witness when starting by trusting the accuser?There were no official measures/sanctions taken following her complaint. Shortly after, we were working on different floors and it remained this way until April 2018. In 2014, unbeknown of me, Afia Khanum lodged further complaints against me with her colleagues and manager, essentially claiming that I was following her to the Moorgate tube station and to the platform she used although I almost never used this platform since I was living south of Moorgate when she was living north of this station, which I also did not know at the time. On Sept 17, 2015 at circa 1:30pm, I decided to use the north platform of the Northern line to get some lunch near Old street. I found out later that this was the platform AK was claiming I followed her to. I met her in the elevator when making my exit from the building. I ignored her. She went on her way in one direction and I used another to reach Moorgate station. I subsequently found her on the platform and pursued walking up from the bench she was sitting on and stood 6-7 meters above where she was and, just waited there for the train. There were two benches where she was sitting. One bench was close to the low end of the second carriage (from the top) and the other was facing the middle space between the 3rd and 2nd carriages. When the train arrived, I approached the upper double door of the second carriage (from the top) to which I was closest (carriage in which I wanted to be in to exit quickly at Old Street station). I waited for passengers to exit and get in. During this time, she made her way up from her bench to this door and got in. I then boarded and stayed my back against the door, certainly not close to her, and got off one stop later at Old Street. My itinerary was proven with TfL records (from a registered Oyster card). On Oct 2, 2015, I was informed that Afia Khanum had lodged a claim against me for following her to the tube and that she felt harassed and intimidated by me. She also reiterated her claims that I followed her regularly to the Moorgate tube station. I would allegedly wait for her at the ticket barriers, on top of the escalators, and go stand on her platform (the north platform of the Northern line). It should be noted that there was never any evidence of this behaviour despite often asking one of her colleagues to walk her to the station (disclosed in emails and transcripts). The only "evidences" AK ever collected were on Sept 17, 2015. I argued that she could have easily, if intimidated in any way, waited for the next tube or moved down from her bench to enter another car than mine. Why choose to enter precisely through the door she could see I would use? Why walk in the path of danger if you think danger there is? It was decided the matter would be officially investigated. A senior business manager acted as a disciplinary officer. She interviewed both of us and concluded that it was one-person word against another and that it could come down to a difference in perception. AK’s complaint was not upheld. The investigation report I was handed out on Oct 20, 2015 stated “that both parties are strongly encouraged and supported to make a conscious effort to not come into any kind of contact with each other. For example, not boarding the same train or at least the same carriage, not getting into the same lift and not speaking to, approaching each other”.Afia Khanum, presumably not satisfied with the investigation outcome, went in the following weeks to the Police (Liverpool street station) claiming that I was trying to engage in conversation with her and was following her in and outside the office. This was supported by no evidence (especially for the conversation bit) save for the two witnesses mentioned above who remained unknown to me until 2018. On the 5th of November, I received a police information notice in which a PC stated: “It is my opinion that your actions of unwanted attention (including following and trying to engage in conversation) to Afia Khanum amounts (sic) to harassment”. The word “alleged” was never used in this information notice. No police investigation was conducted and when invited to meet with the responsible PC to be handed out this notice, I was not allowed to speak in my defence and threaten with arrest if I were to insist. I wrote a letter to this PC to complain about the process I had been subjected to and asked for my letter to be retained by the Police. Despite no supporting evidences, this information notice will be deemed material evidence by Unicredit and the Court. In April 2018, both my team and Afia Khanum’s team were moved to the same floor (5th floor) and I was seated about 7 meters from her, 3 rows of desks between us with my back facing her front. Prior to the move, HR met with me to talk about AK. I was not sent any written reminder of this conversation but HR wrote an email to itself on which I wasn’t copied to say “I was reminded that should I and AK come into contact in communal areas (coffee area, lift etc...) that it would be best for one of us to leave, so as to avoid interaction”. “It would be best for one of us to leave” was not an unequivocal advice and seems to allow some leeway for reasonable appreciation of each situation as they occur. In November 2018 I was suspended due to a further claim from AK. It was alleged that: 1. I acted in breach of an instruction not to interact with Afia Khanum which was issued following complaints previously raised by her in particular it is alleged that I have ignored a reminder to keep my distance from her which was issued to both me and Afia Khanum in April 2018.2. Ifollowed her regularly to the kitchen 3. I had been stopping and staring at her when passing her desk in route to and from the fifth floor kitchen. 4. I had changed my working hours to match hers when she had changed her hours around June 2018 (Ramadan) resulting in both of us being alone on the office floor. 5. I had used a microwave directly above the one she had been using in the 6th floor kitchen causing physical contact. I accepted having entered the 6th floor kitchen when she was already in it but, only because other employees were also present, and only a few times (3 or 4). I had noted that Afia Khanum seemed to be having her lunch at around 12pm and almost always had my lunch between 12:30 and 1pm. For these few times I was in her presence, I genuinely thought that with other Unicredit employees present, AK could not be justified in claiming to feel threaten by me. I would only stay in a kitchen, in her presence , while doing something specific, like placing my food in a microwave (never the microwave above the one she would have been using) during which time I would ignore her, and then would leave the kitchen so she could not be justified in claiming to feel intimidated. She also said, in her interview with the first 2018 disciplinary officer (the Chief administrative officer – Federico Bolignini) when he asked her "if it was ever her and me in the kitchen in the morning", that "she would sometimes wait for other people to go in the kitchen". She also stated that "she would go up to the 6th floor kitchen at 11:50 to heat up her lunch and I would sometimes be there, making myself coffee". Although I denied being ever in the kitchen at 11:50 (and do not drink coffee), these statements strongly suggest that, as I did, AK was not disturbed by my presence at least as long as other Unicredit employees were present. On June 19, 2018, I had sent an email to HR which said that: “I was in the kitchen (~8:45am) with a person from compliance. Afia Khanum came in the Kitchen, saw me and chose to stay although the compliance employee was leaving the kitchen. So, AK was alone with me in the kitchen doing her things while I was finishing mine (I guess I am not so scary… very similar to what she did on the tube when she chose to board the same car I entered). It doesn’t bother me except for the fact that I think you told me that if for instance, I was coming in the kitchen and AK was already there, I should not enter?” HR response was: “The advice remains the same for both of you, in that contact should be avoided wherever possible”. I told the Court that I would not have written this email but for the fact that AK chose to remain alone in the kitchen with me and that despite this exchange of emails, I always thought that I could not have been perceived as a threat to her in the kitchen when there with other Unicredit employees. After all we were seated not far from each other on the same floor and cross passed regularly (very close proximity) on the way to the kitchen or to the exit/toilet, moving in opposite directions. Entering the 6th floor kitchen while Afia Khanum was already there in presence of other employees, was not what AK complained against and was not specifically/strictly advised against under either the 2015 recommendations, which were the only written recommendations, or the April 2018 reminder. She complained about the alleged following and alleged physical move resulting in body contact. The 6th floor kitchen was not comparable to a closed lift space or a closed tube carriage space. It was fairly large, but more importantly populated by Unicredit employees (not strangers) and had two open (doorless) entry/exit points. AK’s evidence was that, due to these two entrances, "she might not have even seen me if she had been using the 6th floor kitchen". So should it have not been more important for the Court to determine whether the respondent ( Unicredit) had been unreasonable in refusing to consider whether Afia Khanum'’s claims were likely to be true rather than trying to determine whether I had followed a recommendation which was apparently of no real value to AK and based on unsubstantiated claims (the 2015 tube incident) against which clear and reasonable evidences existed. Instead the Court ruled that the kitchen was a small space, so comparable to a lift or a tube carriage, and that I should have known not to enter. The court considered that I could have used the second kitchen on the 5th floor which was on the opposite side of this floor. Although I voluntarily used this kitchen in the first few weeks following the move, and despite requiring only two minutes extra to reach it (one had to pass two badge operated doors), it meant I could not meet my colleagues in the kitchen. Additionally, the Court did not consider apparently that if Afia Khanum was feeling intimidated and harassed by my mere presence, she could have easily used the other kitchen. Again, why walk in the path of danger if you think danger there is? During the first disciplinary hearing I denied the other allegations on the basis that Afia Khanum was fabricating them and tried to show with the 2015 tube event that AK did not feel harassed or intimidated by me as claimed. The disciplinary officer, Federico Bolignini, also knew about my communication with HR on June 19, 2018. Two of AK’s Co-workers had supported her allegations of staring. It should be noted that this staring was, before the official complaint was presented to me, described as looking or glancing prior to being described as staring. One witness, her manager (Cyprian Vochitu) had seen me once, only once, allegedly staring at her just after 9:00 am (no date) “for a couple of seconds” as I would have been standing near the kitchen. I told the court I could not recall this situation and that if near the kitchen, would probably not have been able to see her distinctly as I am near sighted. Further can one really call staring, looking in one direction for a couple of seconds? The second witness gave a detailed outlandish story where I would have upon hearing AK’s voice, hurried out of the 5th floor kitchen to then stop and stare at her. This event had allegedly taken place on a specific date which was a Sunday, a day AK and this witness never worked. Cyprian Vochitu had also stated, without having witnessed anything, that the 2015 tube event had been creepy, simply relying on what she had told him… Cyprian Vochitu added “I must have had some sort of fixation with AK”. Given their attention to my every move (unbeknown of me), was I not instead the one being fixated on? However, Cyprian Vochitu was thought to be well placed to make his judgement and this was "a determining factor" for Federico Bolignini “to decide AK was telling the truth”. Before the appeal hearing at Unicredit, I was given access to the transcripts of both Afia Khanum and her manager’s 2018 interviews with Federico Bolignini (which took place after Federico Bolignini interviewed me, and before Federico Bolignini decided she “was telling the truth”) and was given the transcript of AK’s 2015 interview. I noticed three new important facts: 1. AK had given Federico Bolignini, in the presence of HR (Angie Sproit), voluntarily, a new version of the 2015 tube event. In 2015 she had said to the then disciplinary officer that I entered , the tube carriage, after her (which I confirmed) and stood right next to her which made her feel anxious and that she thought I had got off at Old street (proven with Tfl oyster card records). She also said in an email to her manager that I had been too close for comfort. In 2018, she said that I entered after her, placed myself right behind her and, rubbed myself against her between the Moorgate and Old street stations. She then said that at Old street station, she was able to put some distance between her and myself (we can assume a comfortable distance) and started filming me. Then, upon realising the filming, I would have exited at Angel station. I learned about this video in 2018 upon reading the transcript of her 2015 interview. The video shows me from head to the upper tier of my thighs (pointing to some distance between me and her), shows me against the door and for most of the time with my eyes shut. Nothing out of the ordinary. Angie Sproit had seen this video and was part of the 2015 investigation so knew Angel was not my exit station and that the rest of the description was false. In any case, given the above, the video was taken between Moorgate station and Old street station and I, therefore, was neither too close for comfort nor right behind her. Were these stories too confusing for this conclusion to be reached by senior Unicredit executives and the Court? During my interview with Federico Bolignini, I had also contested Afia Khanum’s account of the 2015 tube event. However, neither Federico Bolignini nor especially Angie Sproit challenged her on this new version of facts and no concern was noted despite Federico Bolignini and Angie Sproit having debriefed after this interview. Furthermore, Afia Khanum had given no less than three different and incompatible versions of what had taken place between her and me on the platform prior to us boarding the same tube carriage. Two in 2015 and one in 2018 (available from interview transcripts). It was argued in Court that these glaring memory inconsistencies could have been due to her having been traumatised by this tube experience. However, first, she could have, easily, as shown above, entered another carriage or waited for the next tube and second, there is no need for a good memory when telling the truth.Judge Harjit Grewal decided against me saying that it was too much of a coincidence to be one. 2. Afia Khanum had said in her interview with Federico Bolignini, the staring did not happen during the day (contradicting Cyprian Vochitu above) but in the morning between 7:15 and 7:45 am, time during which we were allegedly alone on the 5th floor. First, as agreed by all parties during the court hearing, AK, during her interview with Federico Bolignini, had said that prior to the alleged microwave incident, she had thought everything during 2018 could have been due to a coincidence. That included this staring which was described as my stopping (in route to or from the kitchen) in front of her row of desks and staring in her direction. It allegedly happened no less than 5 or 6 times every morning since Ramadan. Can one really believe that this kind of behaviour on my part could have been viewed as a coincidence? In addition, and more importantly, I was not on the floor during 7:15 and 7:45 am, as every morning, I would instead be on the 8th floor for a shower and physical therapy exercises. These two facts should have put serious doubts on her staring allegations and subsequently on her other claims. This was just common sense. And if it wasn’t true, then, there was no other way to put it than to admit she was fabricating these staring allegations against me. 3. In her 2015 interview, Afia Khanum had also said, that on three occasions in the 5th floor kitchen, in 2013, “I had rubbed my crutch in front of her and one of her colleagues after coming over to the sink”. Although I refuted this claim, I did say in court that it was possible that I had gone to the sink to use dish washing liquid to clean a food stain on my pants (because regular soap, in the men’s room for instance, does not eliminate grease on clothes), in which case I also would have only been looking at my pants or the sink. In any case, these three alleged rubbing incidents do not show up in any 2013 email included in ET3. The person who was allegedly with her in the kitchen was also interviewed by HR but did not make any mention of them. Nevertheless, the barrister for Unicredit used this claim in Court. Law360, in their first publication about my case, among other incorrect statements, misreported this court exchange.In my Unicredit appeal hearing, I told the disciplinary officer (another administrative person, the Head of the UK office – Christian Stephen) as well as the Head of HR which was present (Georgiana Lazar), about the discrepancies in Afia Khanum’s recollections regarding the tube event. I also told them that I wasn't on the 5th floor when the staring was alleged to have taken place and that two Unicredit colleagues working in Sales, I believe, on the 7TH floor, saw me regularly in the shower room in the morning. I also, more importantly, told them that this could be checked with my badge time stamps which recorded entries to any floor. HR knew to request time stamps from my badge on the ground floor of the building to check my regular entry schedule. In so doing they verified I had not changed my working hours as claimed. They presumably did not request the same checks for the other floors (in particular 5th, 6th and 8th floor) and ignore the tube event descriptions discrepancies, resulting in Federico Bolignini’s decision to be confirmed by Christian Stephen. Christian Stephen stated in his witness statement that: “In the absence of any evidence that the allegations had been fabricated, I felt that there was no basis on which I should disbelieve AK or interfere with the conclusions of Federico Bolignini.” HR (Angie Sproit) claimed in Court, that they had decided not to ask for these time stamps because time records were only kept for circa 10 weeks and that they could have been inconclusive as one can enter a floor behind someone else. However, I would re-enter every day the 5th floor close to 8am, time at which not many people entered the floor and would enter the 8th floor even earlier. Afia Khanum, also stated in her interview with Federico Bolignini that she was still coming at 7:15 am at the time of her October 2018 complaint (AK was still coming to work at circa 7:20/7:25 according to time stamps obtained on the ground floor by HR). So, the badge time stamps would have definitely helped in establishing a pattern which would not have confirmed the staring allegations and hence should have put in doubts her other allegations. It would have been very appropriate and was very simple to request as they knew for having done it for the ground floor. I had been consistent also in mentioning the fact that I was taking a shower in the morning from the first hearing (even confirmed by my manager prior to both hearings). Why would I ask for time stamps to be proven wrong? Did Unicredit not request them because entry records had proven me right on the ground floor? The evidences were undoubtedly there but Unicredit decided to ignore them. The Court did not think it unreasonable for Unicredit not to have requested the time stamps. Christian Stephen also retained against me that I failed to give him any credible reason why Afia Khanum would fabricate her allegations against me. I had surmised that my objecting to her spraying herself at her desk (close to me), on the 4th time I briefly talked to her in 2013, could have been the trigger but, honestly did not know and said so. How could I be expected to understand why she was fabricating her claims against me, as I never interacted with her since the last time, we briefly talked in 2013? Perhaps if my professional expertise were in psychology or mind reading, I would have been able to give him the reason she would make such absurd and completely fabricated allegations. The barrister for Unicredit started her cross examination by asking me if I thought staring at a woman from behind (nothing else) constituted sexual harassment. This question, the purpose of which I still do not understand, was again misreported by Law360 (which makes one wonder at the type of journalism Law360 is in).The court held against me the fact that I refused in 2013 to modify my exit time and in 2015 to “keep away from Afia Khanum”. The reason I refused in 2013 is because, I had the right to as it wasn’t an official order, I hadn’t done anything to justify her complaint, and she could also modify her exit time. Having modified my exit time would not have prevented the 2015 complaint. Further AK who had accepted in 2013 to leave 10 minutes earlier than what had been her exit time, which I did not know at the time, went back to her old exit time in 2014 without informing HR (as she admitted in her 2015 interview). In 2015, the reason for my refusal was, again that I could, but also that had I accepted, It would have suggested that in the past I wasn’t keeping away and, because, actually, I was already and reasonably doing all I could to ignore AK and avoid any contact with her. This 2015 HR suggestion would also not have prevented the 2018 claim. The court knew from the witness statements of the two disciplinary officers that, the facts above related to my refusal to modify my schedule, the 2013 & 2015 statements from Afia Khanum’s witnesses (co-worker) as well as all her 2013 to 2015 numerous claims to HR, her manager or her colleagues, in emails or meetings, were not part of the information considered by the two 2018 disciplinary officers prior to making their decision. Hence, it should not have been admitted to determine the reasonableness of their 2018 decisions. However, the Court admitted them. The court, further, knew that her manager thought the trigger for the latest complaint was a forthcoming move to the 6th floor. The court was also aware that her manager also said that when she learned about this forthcoming move, she had said “no way” to which her manager had responded that “these issues needed to be sorted out”. In her interview, she stated that the trigger had been the alleged microwave incident. What was it really? Finally, The Court did not see any issues between the 2015 recommendations and HR not objecting to my move to the 5th floor close to her despite this move forcing us inevitably to meet on the 5th floor if only through crossing paths. I wrongly believed that employment courts were true courts of law in that they had to rely on hard evidences (when available). People lie but evidences do not. Afia Khanum did not produce a witness statement and was not present on any day of this trial which meant she could not be cross examined. I was the only witness providing clear evidences (on the 2015 tube incident, including the video provided by AK, and the alleged 2018 repeated morning staring). Unicredit choice to ignore and to refuse to analyse/investigate available evidences should have shown to the Court, that Unicredit had not been reasonable when conducting their 2018 disciplinary process as it denied me proper due process. Employment tribunals are supposed to rule on the reasonableness of the employee’s dismissal. The trial should have never been about determining whether AK or I were lying (which is why I did not have character witnesses as advised by my solicitors (Excello Law)/barrister (Gus Baker). However, Judge Harjit Grewal said she had to decide who she wanted to believe between AK and myself. Judge Hargit Grewal decided that AK was credible despite the previously introduced evidences pointing to the unreliability of her allegations and/or the unreasonableness and clear bias of Unicredit in conducting their investigation and, despite her absence in Court. Both disciplinary officers told the court that the Me-Too movement had been a factor in their decisions and, the bank barrister exploited this same movement in her closing arguments to the Court. It is a disgrace for this well justified movement to be used to give credence to unsubstantiated claims not supported by available evidences. Based on this premise and her understanding of the recommendations AK and I had received, the Judge assumed that all her allegations from 2013 to 2018 had been true. Because the judgement was said to be based on “facts”, an appeal was not possible or so was I told by my solicitors/barrister.Since I was not aware of what Afia Khanum was fabricating and when, I had no witnesses. My only defence against most her allegations could only be a strong denial. I might have been in some cases where she said I was but never for the reasons she claimed. They were clear and strong evidences introducing serious doubts on her allegations as noted above, but unfortunately, these evidences were blatantly ignored and based on the wrong premise, Judge Harjit Grewal rendered a serious misjudgement. The corporate disciplinary procedures, even when followed to the letter, are free to be abused. Hard evidences are generally needed in criminal court, but unsubstantiated allegations can apparently be used in UK employment law (even when available evidences go against them) to stop careers and wreck lives. Never-mind that Unicredit can choose to have no concern for due process but why, in the UK justice system, are employment courts still allowed to essentially administer justice like none other than kangaroo courts?