Ms Aly (Counsel) For the v Respondent — 2023

The claimant had been employed by London Underground since 2007 and the tribunal accepted that she was disabled by reason of Ehlers-Danlos syndrome, fibromyalgia, psoriatic arthritis and a compromised immune system caused by methotrexate. Occupational health reports from 2010, 2013, 2018 and 2019 recorded restrictions including no prolonged standing, walking or sitting, limited stair use, regular breaks, and no work on platforms, live track or in lift and escalator chambers. The tribunal found that, from 2018 onwards, those restrictions were not shown to be conditional on medication and were understood as continuing restrictions.

After a 2018 disciplinary finding of gross misconduct, the claimant received a suspended dismissal and was removed from the Bakerloo line. The tribunal found that removal to be permanent rather than time-limited. R2 then carried out a redeployment exercise to see whether the claimant could remain a CSA1 at a different station, but area managers did not identify a station that could accommodate her restrictions while meeting safety-critical staffing requirements. The tribunal found that the search for a CSA1 role was genuine, but that no suitable CSA1 placement was available off the Bakerloo line, so the claimant was moved to CSA2 with pay protection.

The first claim allegations about refusing to investigate the 15 September 2019 grievance and about the demotion decision were held out of time, and the tribunal declined to extend time under the s.123 Equality Act 2010 test, applying the Robertson, Caston, Morgan and Keeble approach. On the merits, it found that Ms Costigan declined to progress the grievance because she viewed it as a complaint about the disciplinary move rather than a discrimination complaint, and not because of disability or prior tribunal claims. It also found that the demotion to CSA2 was driven by the inability to place the claimant in a CSA1 role at another station, not by less favourable treatment or victimisation.

The indirect discrimination and reasonable adjustments claims failed. The tribunal accepted that the CSA1 role sometimes involved the pleaded requirements of prolonged walking, standing and sitting, stair climbing and avoiding regular breaks, but it found that the claimant had not shown a group disadvantage affecting people with the same disability, and that the real difficulty was her inability to perform the safety-critical aspects of CSA1 work. It further found that the claimant had already been given substantial accommodation and that redeployment to CSA2 with five years' pay protection was a reasonable response in the circumstances. Those claims were also out of time because the relevant decision was made on 30 July 2019 and there was no continuing act.

The second and third claims also failed. The tribunal found that the 29 January 2021 emails were a series of management responses to the claimant's correspondence, sent after delay and in the context of a busy period, and were not disability-related harassment. It found that the 12 to 16 October 2020 period was unpaid because the claimant delayed a risk-assessment call and did not account for her time, and that the 21 November to 6 December 2020 period was unpaid because she did not provide a valid fit note when her earlier certificate expired. The tribunal therefore dismissed the unlawful deduction from wages claim and made no award.