This week we look into a case involving a rail employee who was discriminated against following racist comments, says Tom Scaife of Baines Wilson LLP. The case is important as it highlights the importance of carrying out full and fair investigations into allegations of discrimination within the workplace and ensuring that evidence is considered appropriately.
Morgan v Arriva Rail London Ltd (Arriva)
Mr Morgan worked for Arriva from 18 May 2015 and was generally regarded as an unproblematic employee. Morgan identifies as being of black Caribbean descent. Morgan was the only black Caribbean member of staff in his team.
On 24 August 2019 following the Notting Hill Carnival, there was a team WhatsApp chat for Morgan’s whole team – one colleague sent a message stating ‘Hey ppl tomorrow we have Jerk chicken or curry chicken … Lets bring carnival into the office’ to which Morgan’s shift manager responded, ‘If we are bringing carnival into the office, who is bringing the drugs and knives?’ Morgan had been shocked and offended by the statement as the Notting Hill Carnival historically plays a large part of black Caribbean culture. His manager also made comments about Morgan being lazy and that the manager would ‘whip him into shape’. The manager also called Morgan a ‘prick’ in front of colleagues.
On 22 September 2019, Morgan was asked by his shift manager to do a ‘breakfast run’ for his team. On his arrival to work Morgan arrived in a stressed state and told his colleagues that he would not be doing the breakfast run again and if his colleagues wanted breakfast they should ‘get off their fat arses’ and go get it themselves. The Tribunal heard that Morgan was the colleague who most often did the breakfast run and felt that his colleagues were ungrateful.
The next day a colleague, Mr. Tourlamain, emailed a complaint that Morgan was ‘very angry and shouting’ in respect of the breakfast incident. Tourlamain claimed that Morgan had commented about; ‘taking anger management tablets, that boxing was helping with his anger issues and that people were lucky to not have been stabbed’. Tourlamain claimed that people in the office were scared and uneasy about the way Morgan behaved and that the boxing comment was an indirect threat. Tourlamain claimed that Morgan was aggressive and intimidating team members.
Morgan was suspended by Arriva on 25 September 2019 pending an investigation. When the investigation was carried out, everyone who was in the room when the incident happened was interviewed except the colleague who was sitting closest to Morgan, despite the investigation report claiming everyone in the room had been interviewed. Different team members reported hearing different things but no one else complained about Morgan’s behavior. Various colleagues commented that there was usually ‘banter’ going on within the team.
When interviewed about the incident concerning the breakfast run, Morgan accepted his behaviour was unprofessional but denied he was aggressive. He accepted that he had made comments about people getting their breakfast themselves but denied making any comments about stabbing.
The investigation reported that Morgan was late for work the day of the incident and alleged that he had used threatening and aggressive language. The investigation recommended that Morgan be brought to a disciplinary hearing. Morgan was later reprimanded at the disciplinary hearing for acting in a verbally aggressive and threatening manner in contravention with Arriva’s Bullying and Harassment Policy. The reprimand was overturned on appeal by Morgan as there was no evidence that Morgan had acted in a verbally aggressive and threatening matter beyond reasonable doubt.
Morgan attended a grievance hearing on 6 August 2020 in respect of other matters which were not subject to Morgan’s claim. At this time, Morgan brought up the previous comments concerning the Notting Hill Carnival and said he considered the remark to have negative connotations in relation to race.
Morgan made a claim for discrimination and an alternative claim for harassment in October 2021.
Under s.13(1) of the Equality Act 2010 A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favorably than A treats or would treat others. Race is a protected characteristic and includes, color, nationality and ethnic or national origins. Tribunals will generally consider whether a claimant was treated less favourably than a comparator and secondly whether the less favorable treatment is based on their protected characteristic.
Decision
Tourlamain’s allegations that Morgan was threatening, and intimidating was a detriment as it led to a suspension and investigation with damage to Morgan’s reputation. The Tribunal found that the allegation was direct race discrimination as there was no evidence to support these allegations. Given the evidence on previous ‘banter’ within the team, the Tribunal found it surprising Tourlamain had complained about the only black Caribbean member of the team. No one else said Morgan was shouting, if that had been true everyone would have heard the stabbing comment. The comments concerning knives and drugs was derogatory stereotyping of people with African Caribbean heritage.
The investigation report was direct discrimination, Morgan was not late for work as the investigation claimed as he had been asked to do the breakfast run by his manager. Further the investigation process has been flawed as Arriva did not involve all witnesses who were in the room at the time of the incident and the investigation did not review the relationship history between Morgan and his manager. The Tribunal held on the balance of probabilities Morgan did not make any remarks about stabbing, no other colleague complained about his behaviour or reported hearing this comment.
The Tribunal considered the previous history between Morgan and his manager despite the time limit for bringing a claim in respect of the previous incidents expiring. Previous cases have supported that ‘an act extending over a period’ can comprise to a ‘continuing state of affairs’ as opposed to isolated or unconnected acts.
As the Tribunal found direct race discrimination the alternative claim for race harassment was not addressed.
Comment
This is an important case for highlighting that managers should not become involved in workplace ‘banter’ and should not condone such behaviour. Employers should ensure that they have in place an effective equality policy and that effective training is put in place for all employees (especially managers and business leaders).
If you have any queries in relation to discrimination, equality policies or would like to discuss any training requirements please contact our employment team on 01228 552600 or 01524 548494.
