Manager guilty of discrimination after raising concerns about employee’s English abilities

Tribunal hears transport worker was not offered development opportunities due to ‘lack of command’ of language

A Transport for London (TfL) employee has won a discrimination and victimisation claim after he was told by his manager he had been excluded from taking part in training and conference calls because English was not his first language. 

The London South tribunal ruled Mr A Khawaja, a Pakistani man employed by TfL as a principal tunnel traffic coordinator on the tube network, had been treated less favourably by his manager because of his race when it came to the allocation of training opportunities.

Khawaja, who had previously worked for TfL through an agency before joining as an employee in October 2016, alleged his supervisor Susan Clarke had denied him access to training opportunities by preventing him from taking part in conference calls and ‘huddles’ in the office.

The tribunal heard that conference calls occurred twice a day, and huddles were held on an ad hoc basis and were usually attended by the supervisor or her deputy. Both Khawaja and a second principal tunnel traffic coordinator, Mr Omer, who was also Pakistani, gave evidence that these were training and development opportunities.

Both told the tribunal they were not allowed to attend huddles or conference calls when they were managed by Clarke.

Khawaja also alleged that during a performance review meeting on 17 March 2017, Clarke made the comment: “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.” 

Clarke, who was also TfL’s principal traffic operator, denied that she prevented Khawaja from attending training or taking part in huddles or conference calls.

She explained to the tribunal that she needed to discuss Khawaja’s potential to provide incorrect information when reporting incidents, and said confusion arose about the word ‘alight’, which she thought Khawaja mistook to mean ‘on fire’. Clarke confirmed she said to Khawaja she could “see why the confusion arose as English was not his first language”. 

Khawaja raised a concern about what was said to him with Mr White, who worked at the London Streets Tunnels Operations Centre. Following that conversation, Khawaja was told shift changes would mean he would not have to work with Clarke again, and Clarke was told to apologise to Khawaja and attend conflict training. 

However, Khawaja was informed on 23 June that he would be working a shift with Clarke. He raised a concern with White, who said Khawaja would have to work with Clarke or be liable to face disciplinary actions if he refused. 

Khawaja raised a grievance with TfL on 10 July and said he was distressed to be asked to work with Clarke, who he felt had discriminated against him. He attended a grievance meeting on 21 August and was interviewed as part of the investigation. 

A final outcome letter sent to Khawaja on 4 December said his grievance was not upheld. The investigators concluded it was not Clarke’s “intention to cause offence but accepted that she could have handled it more sensitively”. 

Khawaja went off sick on 7 December with work-related stress and appealed the grievance decision a few days later. But the decision was ultimately upheld.

TfL requested an occupational health (OH) referral for Khawaja on 9 January 2018 as he was still off sick. Khawaja met with OH, who advised he should be able to return to work once his grievance appeal was settled, but ultimately he remained off sick.

Khawaja wrote to OH on 7 February that he feared for his safety if he returned to work, as TfL “failed to address my concerns for racial discrimination and my ex-manager’s aggressive behaviour towards me”. 

Khawaja remained off sick until his resignation on 27 June 2018. 

He brought race discrimination and victimisation prior to his resignation on 6 April 2018 and, at a subsequent hearing in September following his resignation, added claims of unauthorised deduction from wages and breach of contract.

The tribunal unanimously ruled Khawaja had been the victim of direct discrimination, victimisation and unauthorised deduction of wages. 

Judge Gill Sage said the evidence provided to the tribunal showed Clarke failed to allow Khawaja to attend briefings and huddles, giving different reasons, but that the ultimate reason was because of his race. Sage also noted that Khawaja was able to attend training and development opportunities when allocated a different manager.  

Angela Brumpton, partner at Gunnercooke, said the case emphasised that a language requirement for a job may be indirectly discriminatory on the grounds of race, unless it can be objectively justified. 

“For example, a professional services firm may insist its fee earners have an excellent level of spoken and written English,” Brumpton said. “This would probably be a justifiable requirement as those roles require excellent communication and are customer- or client-facing. 

“However, if your workers are not customer-facing, perhaps working on a factory floor or in a stock room, a demand for exemplary English language skills may not be justifiable.”

She added employers should avoid making assumptions about candidates' language abilities, and any competency exercises should be applied to all candidates equally. 

TfL has been contacted for comment. Khawaja could not be reached for comment.