Mr A Khan v MTR Corporation (Crossrail) Ltd T/a MTR Elizabeth Line: 6004331/2024
EMPLOYMENT TRIBUNALS
Case No 6004331/2024
Between
Mr A KhanClaimantMTR Corporation (Crossrail) Ltd T/a MTR Elizabeth LineRespondent
Before
Employment Judge DavidsonMr R Hignett (instructed by Counsel) for respondentDate 24 March 2025
JUDGMENT
The unanimous judgment of the Tribunal is that the claimant’s claims of failure to make reasonable adjustments and unlawful deductions from wages fail and are dismissed.
REASONS
Issues At the start of the hearing, the issues were clarified as the previous List of Issues was not clear. Both parties agreed with the revised List of Issues as set out below. Time jurisdiction
Issues
[1]Are any of the Claimant’s complaints out of time?[2]If so, do they form part of a continuing act, the last of which is in time?[3]Would it be just and equitable to extend time and by how much? Failure to make reasonable adjustments (section 20 Equality Act 2010) (The respondent accepts that the claimant was a disabled person for the purposes of the Equality Act 2010.) PCP 1[4]Did the respondent apply a requirement for Customer Experience Assistants (CEAs) to stand at the station gateline during shifts?[5]If so, did the PCP put the claimant at a substantial disadvantage when compared to someone without the claimant’s disability in that the claimant had a foot injury and was unable stand for extended periods of time?[6]Did the respondent know or could it reasonably be expected to have known that the claimant was likely to be placed at a disadvantage?[7]Would it have been reasonable for the respondent to have made the following adjustment: move him to a ticket office role or other role where he didn’t have to stand?[8]Did the respondent fail to take those steps? PCP 2[9]In the period from June to September 2022 (redeployment process under Adam Tilsley) and /or February to June 2024 (redeployment process under Ty Wallis) did the respondent apply the following PCP: a requirement to apply for any suitable alternative roles and go through a competitive selection?[10]If so, did the PCP put the claimant at a substantial disadvantage when compared to someone without the claimant’s disability in that the claimant was restricted in the duties that he could perform and therefore the roles he could do.[11]Did the respondent know or could it reasonably be expected to have known that the claimant was likely to be placed at a disadvantage?[12]Would it have been reasonable for the respondent to have made the following adjustment: allow him, without having to apply and without having to compete with other candidates, to fulfil vacancies at ticket offices at Stratford and Manor Park stations?[13]Did the respondent fail to take those steps? PCP 3[14]In the period from January to June 2024, when working at Abbey Wood, did the respondent apply the following PCP: the requirement to start the shift at 6am?[15]If so, did the PCP put the claimant at a substantial disadvantage when compared to someone without the claimant’s disability in that due to his mobility issues caused by his foot injury he was not able to start shifts at 6am?[16]Did the Respondent know or could it reasonably be expected to have known that the claimant was likely to be placed at a disadvantage?[17]Would it have been reasonable for the respondent to have made the following adjustment to ameliorate the impact of the PCP: allow him to start his shift later, at 6.30 am, and confirm the same in writing?[18]Did the respondent fail to take those steps? Unauthorised deduction of Wages[19]What were the wages properly payable to the claimant under his contract of employment in respect of the work he carried out in the ticket office at Abbey Wood (CSEA duties) between January and June 2024?[20]Was the claimant entitled to be paid at the rate of a CEA (Customer Experience Assistant) or the rate of a CSEA (Customer Sales Assistant)?[21]If the Claimant should have been paid at the higher rate of CSEA it is accepted that he is owed the sum of £1500? Evidence[22]The tribunal heard evidence from the claimant on his own behalf and from Adam Tilsley (Group Station Manager and the claimant’s manager 2019 to December 2022), Ty Wallis (Station Manager and the claimant’s manager January 2023 onwards) and Kirit Varsani (Group Station Manager) on behalf of the respondent.[23]There was a bundle of approximately 310 pages before the tribunal. During the course of the hearing, further documents were added. Facts[24]The tribunal finds the following facts, on the balance of probabilities.[25]We have only considered facts which are relevant to the issues before us, as set out above, and we have not dealt with all matters on which evidence was presented.[26]The respondent operates the Elizabeth Line, part of London’s public transport system. The line is split into three sections: Western, COS (Central Operating Section) and Eastern. The COS section is underground. The opening of COS was delayed until May 2022 and no trains passed through those stations.[27]CEA and other positions in the Eastern section are not assigned to any particular station and employees working in the Eastern section are expected to work in any of the stations on that part of the line, as directed by their managers.[28]The claimant started his employment in 2018 as a Customer Experience Assistant (CEA). Adam Tilsley was his manager. The role of the CEA is to help customers in the station, including standing on the platform and at the station gateline. This is a different role from Customer Service Experience Assistant (CSEA) which is a role based in the ticket office selling tickets to customers. A CEA is paid at a lower rate than a CSEA.[29]The Terms and Conditions for CEA, Travel Safe Officers (TSO) and CSEAs are contained in an agreement between the respondent and RMT and TSSA trade unions. These include the following provisions:a. Clauses 10.4 and 10.5 relate to arrangements for colleagues who are permanently or temporarily restricted solely for reasons of competency. This provides that where colleagues are given a different role because they are permanently not competent to do their own role, they will receive pay for the new role, not their original pay. The assumption appears to be that the new role would be a lower paid role.b. Clauses 11.3 and 11.4 relate to arrangements for colleagues who are permanently or temporarily restricted solely for reasons of health. If the restriction is temporary, the employee will be used to best advantage to carry out meaningful duties. The rate of pay is not mentioned. If the restriction is permanent, the employee will be redeployed to a permanent role after an assessment has taken place to ensure suitability for the role. The employee will receive the higher of the rate of pay for the new role or the original rate of pay.[30]The CEA role includes safety critical elements although there were several occasions when the claimant did not pass his competency assessments for safety critical duties.[31]In November 2020, the claimant sustained a serious injury to his foot. This resulted in problems with standing and walking. As a result he was unable to carry out some of the CEA duties, particularly Gateline and platform duties, which involved standing and walking. He was signed off work due to the injury.[32]The claimant had Occupational Health (OH) assessments on 11 January 2021 and 29 January 2021 while he was still on sick leave. OH concluded that he was fit only for restricted duties with limited standing or walking.[33]On 7 February 2021, the claimant returned to work. He was asked to undergo competency assessments, which he failed, and he was put on a development plan.[34]The claimant had foot surgery on 10 May 2021 and was absent from work until 15 August 2021.[35]He had a further OH assessment on 13 July 2021 and 2 August 2021 and welfare meetings on 19 July and 12 August 2021. When he returned to work on 15 August he was assigned various duties in different stations, originally in the western section until he expressed a preference to work in the eastern section, which was nearer his home.[36]On 6 December 2021, the claimant was asked at the last minute to work at Woolwich. He says he was criticised by the managers for arriving late at Woolwich. He complained to Cassandra Sutton (Group Station Manager) by Whatsapp and by email about the way his managers, Astrit Ibrahimi and Wahsim Safiedeen, spoke to him. He alleged bullying behaviour but made no complaint regarding the duties he was asked to do or the impact of his disability on those duties. The claimant says he mentioned the issue of his duties in a telephone call to Cassandra Sutton. We find it unlikely that he would not have mentioned the issue in the email if that was his primary complaint against his managers.[37]In January 2022, the claimant had an accident at home resulting in a head injury. The claimant reported suffering from amnesia and was therefore not suitable for safety critical work.[38]The COS opened in May 2022. The claimant was unable to perform his duties as a CEA at this time.[39]On 22 June 2022 Adam Tilsley conducted a welfare meeting during which different possible duties were discussed because the claimant was unable to do the safety critical role due to his amnesia. They discussed moving to an office-based role but the claimant expressly stated he did not want to work with money due to his amnesia and ruled out working in a ticket office.[40]Following this meeting, the claimant was assigned to a temporary job at Liverpool Street Station at the Information Desk on platform 18. This lasted for approximately six months. This is a sedentary job with a chair provided. The claimant alleged that there was no chair. It is not clear if he is alleging that there was never a chair or if there was no chair on some occasions. If it is the former, we find it surprising that he would have done nothing about it. If it is the latter, there is no evidence that he alerted the station management about it, particularly as they are also located on Platform 18.[41]On 11 July 2022, Adam Tilsley followed up from the meeting on 22 June 2022 regarding the claimant’s eligibility to continue in his current role as CEA (COS) after OH advice and a failed safety critical competency assessment. The claimant challenged the position that his role was safety critical, but this is not relevant to our considerations and we do not intend to address it.[42]The redeployment process set out by Adam Tilsley was that the claimant had to apply for any advertised vacancies. It was his responsibility to access the vacancy list. He was told that the redeployment process would be effective for 12 weeks. The claimant alleges that he was told he would be dismissed after the 12 weeks had expired. The claimant carried on in his temporary role at Liverpool Street and there is no evidence that dismissal was contemplated by the respondent.[43]In December 2022, Adam Tilsley ceased to be the claimant’s manager. Ty Wallis took over as his manager from January 2023.[44]The claimant was absent with a back condition (related to his foot condition) from 12 January 2023 to 4 March 2023. He returned to work on a phased basis until June 2023. He then expressed an interest in ticket work and attended a ticket office course in October 2023.[45]Between March and October 2023, the claimant was working as a control room assistant at Custom House Station, viewing CCTV footage and answering phones.[46]In January 2024 he was moved to work at the ticket office in Abbey Wood on a part-time and temporary basis. The roster shows that his shift was from 6.30am to 11.00am. On occasions he was asked to cover staff absences at other nearby stations. He was paid his full-time CEA salary throughout this period.[47]Alongside his work at Abbey Wood ticket office, Ty Wallis discussed redeployment with the claimant. He referred to the Peterborough Agreement, although this is a policy which applies to train drivers and not the claimant. HR then corrected Ty Wallis and confirmed that the Peterborough agreement did not apply to the claimant.[48]The respondent continued to follow a redeployment process which ultimately resulted in the claimant successfully applying for a permanent position at the Abbey Wood ticket office. He was informed of this by letter dated 12 June 2024. On 24 June 2024, the claimant resigned to take up a new job at London Underground. Relevant law Time limits
Relevant law
[49]The time limit for presentation of a claim is set out in section 123(1) of the Equality Act 2010 which provides that claims must be brought within three months (plus the ACAS early conciliation period) or such other period as the employment tribunal thinks just and equitable.[50]In assessing whether it would be just and equitable, the tribunal will consider the prejudice suffered by each party and take into account factors such as the length of and reasons for the delay. Duty to make reasonable adjustments[51]Section 20 EA 2010 sets out Section 20 Equality Act sets out the duty to make reasonable adjustments. This provides that, if there is a provision, criterion or practice (PCP) that puts a disabled person at a substantial disadvantage in comparison with non-disabled persons, the employer must take reasonable steps to avoid the disadvantage. Unlawful deduction from wages[52]Section 13 of the Employment Rights Act 1996 provides that an employer shall not make a deduction from wages of a worker employed by him unless the deduction is required or authorised to be made or the worker has previously signified in writing her agreement or consent to the making of the deduction. This section applies to deductions from wages which are properly payable to the employee. Determination of the issues Jurisdictional issue[53]In relation to the time periods, we find as follows: PCP 1 – we find that this claim is out of time. We do not find that it is part of a continuing act as the most recent allegation by the claimant that he was asked to carry out gateline duties is 6 December 2021. We do not find it would be just and equitable to extend time in relation to this claim. We do not accept the claimant’s justification for not putting in the claim within the time limit, being that he did not want to go through a long process and that he was unaware of the time limit point. We take note that he was a union representative and, even if he was not himself aware of the time limits, he had access to relevant advice. PCP 2 - we regard the redeployment process as a single process, even though there were two managers dealing with it at different times. The requirement for redeployment arose from the claimant’s injury and the knock-on effects of that injury. This claim is therefore in time as both redeployment processes are part of a continuing act. PCP 3 – This claim is in time Failure to make reasonable adjustments PCP 1[54]If we are wrong about the time issue for PCP 1, our conclusions on the issue itself is that we find that there was a PCP for CEAs to work on the Gateline as part of their duties, but not when the station was not operational.[55]When the PCP applied, we find that would have put the claimant at a substantial disadvantage when compared to someone without his disability as he was not able to stand for extended periods of time.[56]We find the respondent knew that the claimant was likely to be placed at a disadvantage.[57]We find it would have been reasonable for the respondent to have moved the claimant to a role where he didn’t have to stand. This could include a ticket office role but it would not have been reasonable for the respondent to have moved the claimant to such a role when he had expressed an unwillingness to work in that environment due to his amnesia.[58]We find the respondent did take those steps as appropriate. For example, the respondent placed the claimant on the Information Desk at Liverpool Street, on office duties in Custom House and in the ticket office in Abbey Wood.[59]The claim in relation to PCP 1 fails. PCP 2[60]We find that in the period from June to September 2022 (redeployment process under Adam Tilsley and /or February to June 2024 (redeployment process under Ty Wallis) the respondent applied the PCP of requiring employees to apply for any suitable alternative roles and go through a competitive selection.[61]There was no evidence before us that the claimant’s disability impacted on his ability to go through the application process. There was no evidence that he was disadvantaged in relation to any particular role due to having to go through an application process for that role. We note that he was successful in his application for the ticket office role at Abbey Wood.[62]We find that it would not have been a reasonable adjustment to allow the claimant to be given a role without going through an application process. We find that it is important that the respondent ensures that any candidate for a role is suitable before appointing them to the job. Given that the claimant was successful in his application for a role at Abbey Wood, we find there was no disadvantage to him in any event.[63]The claimant relies on the fact that another individual was placed into a role under a ‘stood off’ procedure in 2019. The respondent explained that this individual had moved to the respondent under TUPE and this was part of his inherited terms and conditions. The claimant suggests that, even if he had no entitlement to a ‘stood off’ process, it was clearly something that was possible for the respondent to do, since it was done for this employee. We find that the respondent is not obliged to adopt practices which some employees happen to be entitled to. We find that it is reasonable for the respondent to require its employees (unless they have a contrary entitlement) to go through an application process for any new job to ensure they have the competencies and aptitude for that role.[64]The claimant contends that the reasonable adjustment would have been to allow him to fulfil vacancies at ticket offices at Stratford and Manor Park. We accept the respondent’s evidence that CEAs are not assigned to these stations and they are expected to work at any station in the Eastern section. The claimant had said that he could not work at many of these stations, particularly where there are lone workers, and this was supported by OH.[65]We therefore find that this was not a reasonable adjustment.[66]The claim in relation to PCP 2 fails. PCP 3[67]We find that, in the period from January to June 2024 when the claimant was working at Abbey Wood, the respondent applied the PCP of starting the early shift at 6am, which was the time the ticket office opened.[68]We find that the PCP could potentially have put the claimant at a substantial disadvantage when compared to someone without the claimant’s disability in that due to his mobility issues caused by his foot injury it is possible he was not able to start shifts at 6am, although this was not fully explained and we are unable to conclude that it did put him at a substantial disadvantage.[69]We find the Respondent potentially knew that the claimant was likely to be placed at a disadvantage but the disadvantage would have had to be explained to the respondent.[70]We find it would have been reasonable for the respondent to have allowed the claimant to start his shift at 6.30am in order to ameliorate any disadvantage of the disability.[71]However, we do not find that it is a reasonable adjustment to require this to be in writing. There is no disadvantage arising from the claimant’s disability which would have been ameliorated by the change to his hours being confirmed in writing. While we understand that the claimant might have wanted the reassurance and security of written confirmation, the absence of such confirmation is not a disadvantage that arises from his disability.[72]The respondent made the adjustment by amending the claimant’s start time.[73]Therefore the claim in relation to PCP 3 fails. Unauthorised deduction of Wages[74]We have considered which sections of the CEA terms and conditions apply to the claimant for the purposes of his unlawful deductions from wages claim. We find that the provisions relating to restrictions due to competency do not apply to the claimant. The correct provisions are those which related to restrictions due to health. It is clear to us that the claimant’s issues with his role all stem from his foot injury.[75]Clause 11.3 applies where the health issue is temporary. We find that at the time of the OH recommendations and placing the claimant in other roles, the understanding was that his condition was temporary. By the time of the final redeployment in June 2024 (which the claimant never started because he resigned before the start date), the health condition was permanent and clause 11.4 applied.[76]We find that the wages properly payable to the claimant while he was working in the ticket office at Abbey Wood between January and June 2024 was his CEA rate of pay. We do not find that being placed in that role on a temporary basis entitled him to an increased rate of pay. We note that he carried out that work without going through an assessment to ensure suitability for the role because it was not a formal redeployment. We find that, once he was formally redeployed into the CSEA role, he would have been entitled to the higher rate of pay. In the event, the claimant left the respondent’s employment before the start date for the redeployed role.[77]The claimant’s claim for unauthorised deductions from wages fails.
Conclusion
[78]In conclusion, all the claimant’s claims fail and are hereby dismissed.