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An information controller at a rail company was discriminated against after being reported for “threatening and intimidating” behaviour and being subject to a flawed investigation process.
The London Central tribunal found that Mr Nick Morgan was discriminated against after being suspended by Arriva Rail London and subject to a disciplinary hearing following a colleague complaint regarding his behaviour.
The tribunal found that the investigation was flawed as it did not involve all witnesses and the process did not explore the relationship between Morgan and the colleague who reported him, “which might indicate whether [the colleague] had any motive to report Mr Morgan or to exaggerate or mislead,” the tribunal said.
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An alternative claim of race harassment was not upheld.
Morgan had been employed by Arriva Rail London since 18 May 2015 and was generally seen as an unproblematic employee. The tribunal heard that on 22 September 2019, Morgan had been asked by the control shift manager, Mr Collen-Jones, to do the Sunday “breakfast run” for his team and pick up bagels for his colleagues. Morgan arrived late at work in a stressed state having had a long and stressful journey from his home to work.
When he arrived back at work, he told the whole room that he would not be doing the breakfast run again and that if they wanted breakfast next time, they could “get off their fat arses” and go for it themselves. The tribunal understood he was the person who most often did the breakfast run and he felt his colleagues were ungrateful.
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“He accepts that was an unprofessional way to have conducted himself, but he denies that he was aggressive,” the tribunal said.
The next day, Mr Tourlamain, a train service controller, and one of Morgan’s colleagues, emailed a complaint:
“ …I arrived for my shift at 0730. The previous evening it had been arranged that Nick Morgan could come in late as he was getting bagels for the office. At around 11.30 Nick arrived in the office very angry and shouting about he was never doing bagels again as people were moaning about the time it had taken. He then sat down and after a few minutes told David Colleen Jones if he needed to know about the anger management tablets he was taking and that he may have to take more due to this morning. He advised that boxing is helping him with his anger issues. Something in my opinion is another way of threatening the office. He then kept mentioning bagels throughout the morning a commented people are lucky that they are not getting stabbed.. He later on told DCJ that people are lucky they didn’t get stabbed and DCJ replied that that was a bit extreme. I am no longer willing to except Nick’s behaviour as I know for a fact that other people in the office are scared and uneasy about the way he behaves.”
As a result of this complaint, Morgan was suspended on 25 September 2019 pending investigation.
Scott Paton, strategic command network interface manager, was appointed to investigate. Paton interviewed everyone present except the colleague who was sitting closest to Morgan. Paton could not explain to the tribunal why he had not interviewed this colleague or why he said in his investigation report that he had interviewed the whole team.
Team members had various recollections on the incident and had heard different things, however, no one had complained afterwards about Morgan’s manner.
When interviewed on 8 October 2020, Morgan denied he had made any threatening comments. Morgan also explained that he had previously told Collen-Jones that he was on antibiotics. “They had a running joke whereby they called any medication ‘loopy pills’ as you must be mad to work in control,” the tribunal heard.
In his investigation report, Paton presented his findings that Morgan “attended for duty late” and “upon his arrival was very angry/ frustrated about a number of factors”. That was followed by “it is also alleged that Mr Morgan used threatening/ aggressive language”.
Based on this information, Paton’s investigation concluded that Mr Morgan demonstrated unacceptable behaviour in direct contravention of the bullying and harassment policy and failed in his responsibility not to behave in a way that could be deemed offensive to others. He recommended that Morgan be brought to a disciplinary hearing.
The tribunal noted that “Mr Paton did not explore with any of the witnesses the relationship between Mr Tourlamain and Mr Morgan and matters which might indicate whether Mr Tourlamain had any motive to report Mr Morgan or to exaggerate or mislead”. In addition, “Mr Paton did not explore with Mr Morgan his comments about other banter and race discrimination”.
The tribunal heard of an earlier incident on 25 August 2018, where there was a WhatsApp chat among Morgan’s team about Notting Hill Carnival, which was taking place the following weekend. One team member had texted ‘Hey ppl tomorrow we have Jerk chicken or curry chicken … Lets bring carnival into the office’, to which Morgan’s line manager, Mr Colin Toms, responded ‘If we are bringing carnival into the office, who is bringing the drugs and knives?’ – a statement Morgan became shocked and upset by as Notting Hill Carnival historically plays a very large part in his black Caribbean culture.
“He felt the remark was, by analogy, like someone making a gratuitous remark about the Catholic Church that it was full of paedophiles,” the tribunal understood.
With respect to the control room incident, the tribunal found that Morgan was not actually ‘late’. “He had been asked by his manager to go on the bagel run on his way into work. He arrived in the control room, as had been contemplated, after his start time. But he had been on a task given to him by his manager prior to that.”
In addition, the tribunal noted “there were a number of mitigating factors, including that banter had a disproportionate contribution to the workplace culture; Morgan had been sent on an inappropriate errand and then overheard unfair comments about the errand.” It also heard that Morgan had explained that other inappropriate comments had been made by others in the past which had not been followed up in investigation”.
With regards to the stabbing comment allegation, the tribunal said: “We therefore find that on the balance of probabilities, Mr Morgan did not make any remark about stabbing. He may have muttered to Mr Collen-Jones, something like ‘They are lucky that I am not taking my hands on them’, but if he did so, it was not addressed to the room and it was in no way aggressive or threatening.
The tribunal continued: “Given the evidence about the prevailing culture of the control room, we find it surprising that Mr Tourlamain chose to report this one incident, which involved the only black Caribbean member of the team. We also find it surprising that he reported it, given the evidence that no one else was upset. He said others were intimidated, but there is no reliable evidence that they were, or – more importantly – as to why he should genuinely think that they were.”
An Arriva Rail London spokesperson said: “We take this extremely seriously and do not condone discrimination of any kind in our workplace. We place high importance on the wellbeing of all our employees, and we are shocked and saddened to read the findings outlined in this judgement. We will take appropriate action as a result to ensure that this type of behaviour has no place within ARL.”
Sarah Williams, head of employment at Taylors Solicitors, said the tribunal reinforced the important lesson that managers should not condone or become involved with workplace banter – “rather they should control it and not let it get out of hand or let it overspill onto any form of social media”. She said that like many cases involving discrimination, this case highlights the need for clear equality policies and proper training of managers and employees.