A railway signaller was the victim of harassment after his employer failed to investigate a colleague’s racist language, an employment tribunal has ruled.
The tribunal found National Rail Infrastructure failed to investigate an allegation that a colleague used racially-charged language to describe Lancelot Lewis, who has worked as a signaller since March 2005. This failure to investigate the matter amounted to harassment, the tribunal said.
It found Network Rail did not “[investigate] the matter in any meaningful way at all”. It said instead the organisation chose “to come to the conclusion – which [the tribunal could not] see could possibly be justified on the basis of the information before them – that this matter had already been investigated”.
- Technician with arthritis, depression and anxiety awarded £117,000 after unfair dismissal
- Key employment law updates affecting HR
- Could a fresh approach to positive action improve diversity?
The tribunal heard Lewis, who identifies as black British, had worked for National Rail Infrastructure since 2005, and at its Marston Vale Signal Centre since March 2015. At this signal box, members of the public telephone to ask if it is clear to cross. The signaller must check whether the individual can safely cross the railway line and then authorise them to do so.
On 24 July 2018, Lewis gave permission to a member of the public to cross the railway line when he should not have done so because a train was approaching. The individual stopped when she saw the train go past, and Lewis apologised to her, but he did not report the incident.
The husband of the member of the public made a formal complaint to Network Rail. This was passed to Jess Cotton, local operations manager and Lewis’s line manager at the time, who undertook an investigation.
Get more HR and employment law news like this delivered straight to your inbox every day – sign up to People Management’s PM Daily newsletter
The tribunal heard that on 25 July – the day after the incident – Lewis was interviewed and confirmed he had received a call from a woman asking to cross the railway line. Asked why he had not reported the incident, Lewis said his state of mind at the time had clouded his judgment. He also said he had apologised to the individual without any further negative reaction, and assumed his apology had been accepted.
A colleague on the same shift as Lewis, I. Cattini, was also interviewed and said he had no knowledge of the incident.
Cotton submitted an investigation report on 26 July. Because the failure to report was considered a reckless contravention, a further disciplinary investigation report was prepared, which concluded the matter should proceed to a formal disciplinary action.
Lewis attended a disciplinary hearing and was issued with a final written warning. Lewis appealed but the decision was upheld.
During this time Cattini raised a separate grievance claiming he had been subject to bullying and harassment. As part of this investigation into this grievance, colleague Hayley Giles was interviewed, and made an allegation that Cattini had used a specific racial slur against Lewis. However, the investigator wrongly believed that the racial slur against Lewis had been investigated as part of an earlier grievance Giles had lodged against Cattini which had failed, and so no further enquiry was made into the matter.
Lewis became aware of the alleged racial slur made against him and raised a grievance. As well as complaining about this racist language, Lewis also claimed the disciplinary investigation on 24 July had not been clear, and that one week after this incident, another similar incident had taken place but there was no investigation.
James Knapp, project operations interface specialist, investigated each of those issues. He found there were differences between Lewis’s incident and the one that happened a week later which justified the different levels of action taken, and that the disparity was unconnected to race. As such, he did not uphold this part of Lewis’s grievance.
In relation to the allegation of racial discrimination, Knapp made enquiries regarding the allegation made by Giles and decided the comment raised by Lewis as part of his grievance had already been investigated. Knapp further concluded there was no evidence of racist language.
Lewis presented tribunal claims on 19 January 2019, complaining he had been the victim of unlawful discrimination relying on the protected characteristic of race.
The tribunal found Lewis was the victim of harassment as Network Rail had failed to investigate the allegation that Cattini had used a racial slur against Lewis. All other claims of discrimination were dismissed.
Judge Michael Ord said the tribunal was not satisfied the specific words Giles alleged Cattini had used were actually said, but that whatever words were used were “clearly racist in nature”. He found the investigation carried out was “at best, cursory”.
“The effect of that failure to investigate is to violate the claimant’s dignity and create an atmosphere for him which can be described as intimidating, hostile, degrading, humiliating or offensive,” Ord said. “Alleged comments made regarding his race have been put before his employer and have not been investigated.”
Andrew Willis, head of legal at HR-inform, said the case highlighted how employers should not skirt around complaints because they were of a sensitive nature or because they may involve uncomfortable conversations. "Once a complaint is made, the employer should arrange to speak to the complainant to understand the exact details of the allegation made and identify any witnesses to the alleged incident," Willis said.
"An investigation report should be compiled to detail actions taken, deliberation on whether there is a case to answer and a decision as to next steps, and include the witness statements."
Willis added that any anti-harassment policy must be acted on if the words within it were to hold any weight and give integrity to an employer’s "alleged anti-harassment ethos". "Taking an allegation seriously and following the appropriate steps is a way of instilling in employees the employer’s commitment to eradicating harassment," Willis said.
Network Rail Infrastructure was contacted for comment. Lewis could not be reached for comment.