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24th June 2019

Tribunal Tale – Khawaja v Transport for London

The facts of the case

Mr Khawaja (MK), of Pakistani descent, worked for Transport for London (TfL) from October 2016 as a Principal Tunnel Traffic Coordinator. MK’s team had conference calls twice per day, and also organised ‘huddles’ on a regular basis, that were attended by the supervisor or her deputy. It was well-known that these calls and huddles were seen as training and development opportunities.

MK’s supervisor was Susan Clarke, a Principal Traffic Coordinator. Ms Clarke refused to allow MK and another Pakistani colleague to attend the huddles and conference calls. MK also stated in the tribunal that, during an appraisal in March 2017, Ms Clarke said ‘Since English is not your first language, I did not assign you to attend any conference calls or operations centre huddles. I think that you may give the wrong information due to your lack of command of the English language”.

During the tribunal, Ms Clarke stated that she had an obligation to raise the risk of MK providing inaccurate information when reporting incidents. Ms Clarke also stated that MK had misunderstood the meaning of the word ‘alight’, taking it to mean ‘on fire’. Ms Clarke accepted that she made a comment about MK misunderstanding the word as ‘English was not his first language’.

MK raised the issue with another manager, Mr White, who informed MK that his shifts would be arranged to prevent him from having to work with Ms Clarke in future. Ms Clarke was also told to issue an apology to MK and attend conflict training.

However, MK was later told in June 2017 that he would have to work a shift next to Ms Clarke. When he raised the issue with Mr White, MK was told that he had no option but to work with Ms Clarke and that a refusal to do so would be viewed as misconduct.

MK raised a grievance in July 2017 in relation to having to work with Ms Clarke and stated that he had felt discriminated against by her. A grievance meeting took place in August 2017 but he was not given an outcome until December 2017. His grievance was not upheld, with the reason given being that Ms Clarke did not intend to cause any offence.

Shortly after, MK was absent due to work-related stress. He also raised an appeal against the grievance outcome but his appeal was rejected. TfL wanted MK to attend an occupational health appointment in January 2018, but MK stated that he would not return until his grievance was settled in relation to Ms Clarke’s aggressive behaviour towards him.

MK did not return to work and eventually resigned in June 2018. Prior to that, in April 2018, MK raised claims of race discrimination and victimisation, and after his resignation he added a claim of unauthorised deduction from wages.

The Employment Tribunal (ET) unanimously upheld his claims, finding that Ms Clarke refused to allow MK to attend calls and huddles because of his race.

What does this mean?

The ET’s decision in this case should not come as a surprise; it was clear from the facts that Ms Clarke’s decisions were racially motivated.

What is interesting about this case is that it was ultimately TfL’s failure to properly deal with the aftermath that led to the claims being raised. MK was initially satisfied by TfL’s promise that he would not have to work with Ms Clarke again, and only raised his grievance after being told that he had no option but to work with Ms Clarke.

There are a couple of lessons from this. The first is that it is generally not a good idea to make promises to employees that are ultimately not kept. TfL might have benefited from reviewing its shift patterns to determine whether it was in fact feasible to keep MK and Ms Clarke separated in future. If not, that outcome should not have been promised.

The second is to bear in mind that an employer should not focus on the intention of the alleged discriminator when hearing a grievance. Indeed, discrimination law is clear that it is how comments are perceived that are important, not the intention behind them. As such, TfL arguably made a mistake in not upholding MK’s grievance because of Ms Clarke’s lack of intention.

Of course, in similar circumstances, it may be difficult for employers to keep colleagues separated, particularly in a smaller organisation. However, it is important to bear in mind that an aggrieved employee is likely to feel let down by their employer, and the employer would be prudent to do all it can to support the employee.

Perhaps if TfL had discussed potential options with MK, and rationally explained why certain options might not be operationally feasible, a mutually agreeable solution might have been found. Instead, going back on their word and threatening disciplinary action just increased MK’s feelings that his employer was failing in its duty of care to him.

Many ET cases could be avoided by adopting a softer approach instead of taking a hard line, particularly where the employee already has good grounds to claim against an employer.

If you have any questions on any of the issues raised in the above article, please contact Seanpaul McCahill.

24th June 2019