Failure to investigate led to a discrimination claim

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 that National Rail Infrastructure failed to investigate an allegation that a colleague had used racially-charged language to describe a signaller. This failure to investigate the matter amounted to harassment, the tribunal said.

It found that Network Rail did not “investigate the matter in any meaningful way at all”. The tribunal heard that the signaller worked in a signal box where members of the public used a telephone to ask if it is clear to cross. The signaller’s role is to check whether the individual can safely cross the railway line and then authorise them to do so.

The claimant 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 the claimant apologised but did not report the incident.

The husband of the member of the public made a formal complaint to Network Rail. The claimant 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, he 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. 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. He was subsequently issued with a final written warning.

Simultaneously, the signaller’s colleague raised a separate grievance claiming he had been subject to bullying and harassment. As part of this investigation into this grievance, it transpired that the claimant had been subject to racist abuse and this matter was ignored as part of the grievance investigation as it was not seen as relevant.  When the claimant learned of this, he raised a separate grievance; but Network Rail failed to investigate this, believing that it had already been dealt with. The claimant complained to the Tribunal, stating that he had been the victim of unlawful discrimination relying on the protected characteristic of race.

The tribunal found in his favour, because Network Rail had failed to investigate the allegation of racism, finding that 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 which can be described as intimidating, hostile, degrading, humiliating or offensive.

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.  In this case, the employer was caught up in several investigations – both disciplinary and grievance.  However it is vital that every complaint is dealt with appropriately – no matter how long or complex a process that might involve.

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