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Employment Law Case Update: Failure to Investigate

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When faced with an employee's misconduct it is crucial that as an employer, you investigate the incident adequately, as well as any subsequent grievances that may arise from it.  Our Employment Law team today review the case of Mr Lancelot Lewis v Network Rail Infrastructure Limited in which Network Rail failed to investigate properly and found themselves in tribunal.

Mr Lewis worked as a signaller for Network Rail from March 2005. In July 2018, Mr Lewis told a woman, via telephone, that it was safe to cross the railway line when in fact a train was approaching. Thankfully, the woman noticed the approaching train and did not cross. She then immediately called Mr Lewis back and informed him of his mistake. He apologised profusely and she crossed safely. Under the Company’s rules, Mr Lewis should have reported and recorded this incident; he did neither.

Later that night, the husband of the woman who Mr Lewis had mistakenly advised to cross made a formal complaint to Network Rail. The incident was then investigated by Mr Lewis’ line manager, Ms Cotton. When interviewed, Mr Lewis accepted that it was his duty to report the incident but said his “state of mind at the time clouded his judgement”. As Mr Lewis’ failure to report the incident could be considered gross misconduct, the matter was escalated to a formal disciplinary hearing. The hearing resulted in Mr Lewis being issued a final written warning. He appealed this sanction but the warning was upheld.

In November 2018, Mr Lewis raised a grievance alleging discrimination based on race. He referred to incidences in the past where he claimed other employees had made similar mistakes yet were not subject to the same disciplinary procedure. He also alleged that he was the victim of racial discrimination by one of his colleagues, Mr Cattini. As evidence of this second allegation, Mr Lewis submitted a statement of another colleague, Ms Giles, in which she claimed that Mr Cattini had used a racial slur against Mr Lewis. 

The company investigator found no evidence of racial discrimination and dismissed Mr Lewis’ grievance. The investigator found that in the past incidences referred to by Mr Lewis, the employees’ mistakes had been properly investigated and that the circumstances of those cases differed enough from Mr Lewis’ to justify different action. Regarding the allegation of racial discrimination by Mr Cattini, the investigator mistakenly believed Ms Giles’ claim had already been investigated and dismissed in a separate grievance investigation, and so did not investigate the alleged discrimination further.

Mr Lewis subsequently filed a claim with the Employment Tribunal (ET) for discrimination based on race. In his claim, he included the disciplinary process and subsequent final warning, Mr Cattini’s alleged racist language and Network Rail’s failure to properly investigate it.

The ET dismissed Mr Lewis’ first allegation of discrimination, finding that the disciplinary procedure and final written warning were appropriate and not motivated by race. Regarding the allegation of harassment, the ET was not satisfied on the balance of probabilities that Mr Cattini used the racist language alleged. However, the ET held that Network Rail’s failure to investigate the alleged comment amounted to harassment under section 26 of the Equality Act 2010. Mr Lewis raised a serious allegation of racial discrimination and had a “justifiable expectation” that it would be rigorously investigated. However, any investigation carried out was “cursory” at best because the investigator believed that the alleged harassment had already been investigated. The ET found that explanation “impossible to accept” and stated that, based on the information before [the investigator], it should have been apparent that no investigation had occurred. Having dismissed Network Rail’s explanation, the ET was left to conclude that the true reason the allegations were not investigated were because they related to race. This failure to investigate created a work environment “which can be described as intimidating, hostile, degrading, humiliating or offensive” to Mr Lewis and amounted to harassment under the Equality Act.

This case is an example of how a failure to take necessary action by an employer can itself constitute harassment. When an employee’s grievance involves a sensitive subject like race, some employers may feel uncomfortable and shy away from carrying out a thorough investigation. However, employers must recognise that they have a duty to protect their employees from all forms of harassment, taking all necessary steps to get to the bottom of a complaint. This may include speaking with the parties involved and interviewing witnesses. Many workplaces will have anti-harassment and anti-discrimination policies which should be followed for guidance.

If you have any questions regarding this article, you can call our Employment team today on 023 8071 7717 or email employment@warnergoodman.co.uk.

This was previously part of our weekly Employment Law Newsletter. If you would like to subscribe, please email us at events@warnergoodman.co.uk or just fill in our subscription form.

ENDS

This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice.  All content was correct at the time of publishing and we cannot be held responsible for any changes that may invalidate this article.