Mr Anatoli Smirnov v Network Rail and 3 others — 2022

At an open preliminary hearing, Employment Judge O'Rourke dismissed Mr Smirnov's claims of protected disclosure detriment and direct race discrimination against Network Rail Limited, Mr Geoffrey Montagne and Mr Thomas Beck-Nielsen, and his claims of harassment and victimisation on grounds of race against Mr Montagne and Mr Beck-Nielsen. The claimant had worked on Network Rail's Digital Railway Project while employed by Ramboll Danmark a/s and relied on that work to argue that he was a worker or contract worker of Network Rail.

The tribunal found that Mr Smirnov was not a contract worker or extended worker of Network Rail. Although he had performed consultancy work connected with the project, there was insufficient evidence that Network Rail supplied work to him, controlled or influenced his employment terms, or substantially determined the terms on which he worked. The tribunal found that his work was most likely provided through Arcadis as a subcontractor and that Network Rail had no duty to investigate his later complaint about alleged conduct by Ramboll entities or individuals.

The claims against Mr Montagne and Mr Beck-Nielsen were dismissed for lack of territorial jurisdiction. The tribunal held that, under the Recast Brussels Regulations and rule 8 of the Employment Tribunal Rules of Procedure 2013, the claims concerned Danish-based individuals acting for or in connection with the Danish employer, correspondence sent from Denmark, and matters relating to the claimant's Danish employment and alleged conduct received while he was in France. The tribunal also found the claim against Mr Beck-Nielsen was out of time.

The tribunal addressed merits in the alternative. It found no evidence that Network Rail's decision not to substantively respond to the claimant's complaint was because of his nationality or Slavic race, and no evidence that Mr Montagne's or Mr Beck-Nielsen's correspondence amounted to race harassment, direct race discrimination, or victimisation. It found that Ramboll Group had been considering police involvement over alleged credit card misuse before it knew of the claimant's 29 December 2019 claim, so the accusation could not have been motivated by that claim.

No compensation or other monetary remedy was awarded. The £800 figure in the judgment was a day-rate or budget figure connected with project work, not a tribunal award.