An employment tribunal has found that Network Rail is guilty of harassment against an employee after failing to investigate a racial slur. 

Earlier this year, an employment tribunal ruled that Network Rail was guilty of harassment after failing to investigate a racial slur that was said from one company employee to another.

The claimant, Lancelot Lewis, worked as a Signaller at Network Rail. In July 2020, Mr. Lewis issued a grievance against his employer for failing to investigate an alleged racial slur aimed at him by another Network Rail employee.

This case initially began when Mr. Lewis gave permission for a member of public to use a level crossing when it was not safe to do so. Later, the husband of the member of public involved lodged a formal complaint with Network Rail after discovering what happened.  Due to this, Network Rail disciplined Mr. Lewis for failing to report the incident himself, calling this “reckless contravention”.

During a disciplinary hearing, the Trade Union member representing Mr. Lewis found that other staff members had been involved in causing similar ‘near misses’ and yet were not disciplined by National Rail. Ultimately, Mr. Lewis was given a final written warning which he attempted to appeal.

Then, in a different appeal, a separate employee, Hayley Gilles, raised a separate grievance against Ian Cattini, another Network Rail employee, citing alleged bullying. Ms. Gilles asserted that Cattini had a history of making racist remarks and cited a expletive-filled, racially charged slur that Cattini had made about Lewis on one occasion in his absence.

Once Mr. Lewis heard of this comment, he issued a grievance; going ahead with his initial complaint of other colleagues allegedly committing similar mistakes and yet failing to be disciplined by Network Rail. However, he also lodged a grievance due to the racial slur waged against him by Mr. Cattini.

With Mr. Lewis identifying as Black-British, he put forward the claim that he was a victim of unlawful discrimination relying on the protected characteristic of his race.

The employment tribunal found that the way in which Network Rail handled the disciplinary hearing was in accordance with the rules and that “race played no part in any aspect of that process”, dismissing Mr. Lewis’ claims that he had been unfairly treated in comparison to other employees.

Contrastingly, in Network Rail’s failure to investigate the racial slur directed towards Mr. Lewis, the employment tribunal ruled that an atmosphere had been created that “violated the Claimant’s dignity and [could be described] as intimidating, hostile, humiliating or offensive”.

For that reason, the employment tribunal ultimately ruled that Network Rail were guilty of harassment for failing to investigate the racial slur which “should have been investigated when they came to the attention of the Respondent”.

Kate Palmer, HR Advice and Consultancy Director at Peninsula, an employment law service, said:

The employer’s failure to investigate a complaint of racially abusive words directed at the claimant was, of itself, found to be an act of harassment by the employer. Employers should not skirt around complaints because they are of a sensitive nature, or because they may involve uncomfortable conversations by those responsible for carrying out the investigation.

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. 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.

As the Judge pointed out, an employee can expect that the employer will investigate matters of this nature. Additionally, any anti-harassment policy must be put into action if the words within it are to hold any weight and to 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. A failure to do so will not only erode the employee’s trust in an employer but can also constitute an act of unlawful harassment.