In the case of Lewis v Network Rail Infrastructure Ltd – ET3300540/2019 the Employment Tribunal held that the failure to investigate an allegation that one colleague had called another a “fucking disgusting wog” amounted to race-related harassment.
The facts in Lancelot Lewis v Network Rail Infrastructure Ltd
Mr Lancelot Lewis (the “Claimant”) commenced employment with Network Rail Infrastructure Limited (“the Respondent”) on 14 March 2005 and had been a Grade 8 Signaller since October 2006, working at at Marston Vale Signal Centre since March 2015. The Claimant identified as Black British and relied on colour as the aspect of race to form his protected characteristic.
On 24 July 2018 the Claimant was involved in a serious near-miss incident: the Claimant gave permission to a member of the public to cross the railway line when he ought not to have done as a train was approaching the crossing. The member of the public had stopped when she saw the train go past and then contacted the signal box, advising the Claimant that a train has passed in front of her. The Claimant apologised to the member of the public for his error and allowed the member of the public to then cross safely.
The Respondent had in place a procedure whereby the Claimant should have reported ‘near-miss’ incidents to Operations Control and/or to his colleague by the end of his shift. He did not do so. The husband of the member of the public who had been wrongly instructed to cross the line by the Claimant contacted the Respondent to report the incident and make a formal complaint, and the Claimant was then removed from safety-critical duties (which is a standard procedure to avoid the risk of further such incidents).
A disciplinary hearing was arranged with the Claiamnt and took place on 20 May 2019. The Claimant did not dispute breaching the Respondent’s policies and procedures, but stated he was in shock and his failure to report the incident was out of character. His union representative also stated at that meeting that the Claimant was at the time working with a colleague (a Mr Cattini) who he did not trust, and against whom he had taken out a grievance previously. The Claimant suggested that this caused him to be hesitant to report the near-miss to his colleague, and further argued that he had been treated more severely than other signalling staff (quoting examples).
The Respondent issued the Claimant with a final written warning dated 5 June 2019, lasting 12 months – this was due to the seriousness of the incident, the potentially fatal consequences of it, and because signallers should reasonably be aware that incidents of such a kind should be reported. The failure of the Claimant’s to notify Operations Control and his Local Operations Manager immediately had meant that no remedial action could be taken which could have involved protecting the Claimant’s own well being.
The Claimant appealed on three grounds. These were:
- On the interpretation of facts of the original hearing;
- The severity of the punishment; and
- His feeling that he had been treated unfairly due to race.
The Respondent was surprised at the reference to being treated unfairly due to his race as this had not been raised at the disciplinary hearing.
The Claimant’s appeal hearing took place on 16 October 2019 but the Respondent rejected the appeal, upholding the original decision. The Respondent did not take the Claimant’s relationship with Mr Cattini into consideration.
It subsequently transpired that another member of staff (Hayley Giles) had in a statement referred to a grievance against Mr Cattini, as well as to racist and derogatory comments Ms Giles stated that Mr Cattini had made (in particular, an allegation that Mr Cattini had stated to Ms Giles that the Claimant was a “fucking disgusting wog”.) The Claimant was made aware of Ms Giles’ statement in due course and on 19 November 2018 the Claimant raised a grievance. He argued in his grievance that he had been treated differently in the way he had been disciplined to a number of other Signalling staff, and the use of racist language used by Mr Cattini about him (relying on Ms Giles’ statement containing the relevant words).
The Respondent undertook an investigation into the Claimant’s grievance but, for various reasons, failed to investigate the specific complaint that Mr Cattini had referred to the Claimant as a “fucking disgusting wog”.
The Claimant subsequently submitted a claim to the Employment Tribunal complaining that he had been subjected to direct race discrimination and race-related harassment.
The decision of the Employment Tribunal
The Employment Tribunal found that the following conduct amounted to race-related harassment under section 26 of the Equality Act 2010:
- That the Respondent failed to investigate the allegation that Mr Cattini described the Claimant as a “fucking disgusting wog”, when the issue was first raised by the Claimant; and
- That the Respondent should have investigated the allegation rather Mr Cattini’s conduct when the grievance brought by the Claimant was investigated
The Employment Tribunal found that Mr Cattini had not in fact used the words alleged, but that the Respondent’s failure to deal with the Claimant’s complaint amounted to race-related harassment.
The other claims regarding different treatment in the way the disciplinary action was instigated when compared with comparators were not well founded were dismissed.
The Employment Judge did not deal with remedy in this particular judgment (it is expected that there will be a further hearing to determine remedy).
Our lawyers’ views on Lancelot Lewis v Network Rail Infrastructure Ltd
Stephen Norton, a legal adviser at Redmans, commented on the case: “In this case the ET accepted the employers need to discipline the employee for failure to follow safety procedures and found no evidence of him facing different treatment from named comparators in this respect. However, the failure not to investigate the allegations of racism where an employee has been the victim of alleged racist language or abuse as the ET stated raises the “justifiable expectation that his employer will investigate such matters with appropriate rigour.”
The liability judgment in the case of Lewis v Network Rail Infrastructure Ltd – ET3300540/2019 can be found here.