G Laffy v Wkcic Group T/A Capital City College Group & Anor [2026] EAT 90

[2026] EAT 90Case No EA-2024-001735-LA
EMPLOYMENT APPEAL TRIBUNAL
Venue Rolls Building, Fetter Lane, London, EC4A 1NLDate 19 June 2026
Before
SARAH CROWTHER KCDEPUTY JUDGE OF THE HIGH COURT
Between
MR G LAFFYAppellantWKCIC GROUP T/A CAPITAL CITY COLLEGE GROUPRespondentMS ODURespondent
The Appellant appeared in person for in personMr T Perry (instructed by Shakespeare Martineau LLP) for RespondentsHearing Hearing date: 11 June 2026
JUDGMENTSUMMARYSex Discrimination, Race Discrimination, Age DiscriminationThe Tribunal did not err in its application of the principles in respect of the reversal of the burden of proof in its consideration of the Claimant’s claims for direct discrimination on grounds of race, age or sex. The Tribunal reached factual findings in respect of whether the burden of proof had shifted to the First Respondent and whether the Respondent had provided a non-discriminatory explanation for the conduct which were entirely open to it on the evidence and considering its other findings of fact.SARAH CROWTHER KC, DEPUTY JUDGE OF THE HIGH COURT:INTRODUCTION
[1]This appeal is brought by Mr Laffy against the decision of the Tribunal (EJ Annand sitting with Mr Bury and Mr Scott with reasons sent to the parties on 30 July 2024) to dismiss his claims for discrimination on grounds of sex, race or age. By that decision, the Tribunal upheld the Claimant’s claim in respect of constructive unfair dismissal, but dismissed his claims for harassment related to sex, race and age, direct sex, race and age discrimination, victimisation and holiday pay. The appeal concerns only the claims of direct discrimination made against the employer.[2]Mr Laffy appeared in person at the hearing of the appeal. He asked for permission to address me from a seated position as a reasonable adjustment arising out of medical issues, independent evidence of which was before me, and I was very happy to give that permission. He had also provided written submissions in advance of the hearing. Whilst Mr Laffy informed me that he is not legally qualified, his submissions were clear and helpful and I am grateful to both him and Mr Perry, who appeared on behalf of the Respondent, for their assistance.[3]At the conclusion of the hearing, I indicated that I would reserve judgment and provide my decision in writing.

THE APPEAL

[4]The notice of appeal is dated 10 September 2024 and contained grounds which had been settled by counsel (who did not appear below or before me at the hearing). Whilst the parties have referred to Ms Odu as the Second Respondent, in fact none of the appeal concerns the case against her and she has taken no part in the appeal and is not a respondent to it. I will therefore refer to her by her name.[5]Although the Grounds of Appeal as drafted set out three separate Grounds, permission to proceed was given only in respect of Ground 3 by John Bowers, sitting as a Deputy Judge of the High Court, at the rule 3(7) stage. No application was made by Mr Laffy under rule 3(10) to renew the other grounds of appeal. Ground 3 of the Appeal, is in the following terms, “The Tribunal erred in finding that there was no evidence from which it could conclude that the First Respondent discriminated against the Claimant. The following evidence was not in dispute: o The First Respondent acted immediately upon an allegation made against the Claimant by the Second Respondent, a black female. o It issued a warning letter despite her saying that she “did not wish to pursue” her allegation. o Conversely, the First Respondent took no action whatsoever in response to numerous formal allegations made by the Claimant against the Second Respondent before and after the allegation that she had made against him. o The First Respondent ignored repeated requests to take action against the Second Respondent. o The First Respondent ignored repeated requests that the First Respondent intervene to protect him from further harassment by the Second Respondent. Very similar additional factors were endorsed by the Court of Appeal in Iwuchukwu v City Hospitals Sunderland NHS Foundation Trust[2019] IRLR 1022. The history and the context of the disparate treatment provide the “something more” and should have shifted the burden of proof. The stark difference between the First Respondent’s reaction to a single complaint made by a black female and multiple complaints made by a white male demanded an explanation. The First Respondent could not explain the difference in treatment with a coherent non-discriminatory reason.” o The First Respondent acted immediately upon an allegation made against the Claimant by the Second Respondent, a black female. o It issued a warning letter despite her saying that she “did not wish to pursue” her allegation. o Conversely, the First Respondent took no action whatsoever in response to numerous formal allegations made by the Claimant against the Second Respondent before and after the allegation that she had made against him. o The First Respondent ignored repeated requests to take action against the Second Respondent. o The First Respondent ignored repeated requests that the First Respondent intervene to protect him from further harassment by the Second Respondent.

THE FINDINGS OF THE TRIBUNAL

[6]The Ground as drafted is discursive and not specific as to which allegations of less favourable treatment are engaged. Mr Laffy’s claim gave rise to four separate allegations of less favourable treatment which was alleged to constitute direct discrimination and I, in common with the Respondent, have proceeded on the basis that the appeal relates to all four allegations. Nor does the Ground of appeal specify whether the appeal relates to all the alleged protected characteristics (race, sex or age). Again, I have worked on the basis that all the protected characteristics remain in issue. In order to consider the appeal, I have therefore found it necessary to set out in some detail the proceedings in the Tribunal and the findings which were made. The following summary is taken from the written reasons of the Tribunal.[7]The Claimant’s claim arose out of the breakdown in his relationship with Ms Odu who was a colleague working also for the First Respondent, (“the College”) and his concerns about the way in which the College dealt with the issues which arose between them and his complaints about her conduct. The situation deteriorated over several months and the Claimant’s case was that he was subjected to a campaign of harassment on grounds of sex, race and/or age by Ms Odu.[8]The ‘turning point’ in the relationship between the Claimant and Ms Odu came on 21 October 2021, when a student went missing on college premises and Ms Odu, who was upset and panicking, approached the Claimant for help finding them. The Claimant’s reaction was to indicate that it was Ms Odu’s responsibility, which further upset and irritated her and led to her shouting directly in his face in a lift.[9]A further incident took place on 30 November 2021 when the Claimant was assigned to act as substitute teacher for a class of which the student which Ms Odu was supporting was a member. Ms Odu effectively refused to take instruction from the Claimant as to work which had been set, and the Claimant raised a grievance with the College about her behaviour. The Tribunal preferred the Claimant’s version of events with respect to these events and found that Ms Odu had behaved unprofessionally in front of students and ignored the Claimant, walking away from him when he tried to speak with her and ‘kissing her teeth’ to indicate contempt. The College had investigated the incident and upheld some of the Claimant’s complaints, albeit not as many as the Tribunal. Ms Odu had refused a suggestion made by the College of some form of mediation of the dispute between her and the Claimant.[10]On 14 December 2021, the Claimant alleged that Ms Odu had driven her car dangerously fast in the College car park such that her tyres had screeched when she had to brake hard at the gates and that a taxi had needed to reverse away from the gates. The College considered that the Claimant was alleging that this had been done deliberately and that Ms Odu was driving her car at him, however, the Tribunal found that this was never the Claimant’s case and that the College was mistaken in its understanding of his complaint.[11]The Claimant reported the incident to the College, which investigated by obtaining some, but not all, of the CCTV footage. The Tribunal watched some limited footage. The College investigation also included review of parts of the CCTV footage in a meeting with the Claimant during which he accepted that the footage did not show the incident as he had reported it. For example, the Claimant had alleged that Ms Odu had forced a taxi driver to reverse to get out of her way, but the CCTV footage showed that this had not happened. The Tribunal concluded that Ms Odu did not drive her car towards the Claimant at speed.[12]On 5 January 2022, Ms Odu arrived late at work, and the Claimant tried to approach her to tell her that the transport worker who accompanied her student from home to school had left the premises already, but that the student for whom she had responsibility was still in the ladies’ toilet, presumably unaccompanied. Ms Odu ignored the Claimant and walked past him and did not attend to the unaccompanied student. The College’s investigation into the Claimant’s subsequent grievance found that the Claimant’s report of these events was correct.[13]On 25 January 2022, as the Claimant reported to the College that as he was walking along a corridor at the College, Ms Odu passed by and whispered in his ear, “sadistic bastard” and when challenged by the Claimant, she smirked and walked on. The College made no findings in respect of this incident, largely because there was no independent witness evidence, however, the Tribunal disbelieved Ms Odu’s denials, and found that she had said these words because by this stage, she had grown strongly to dislike the Claimant, in part because of what had happened in October 2021 but also because of his allegations regarding her driving in December 2021. She had become increasingly unprofessional and inappropriate. The Tribunal also found that she was partly upset by the fact that the driving allegation had been wrongly relayed to her by the College as being an allegation that she had tried to deliberately run the Claimant down.[14]On 28 June 2022, Ms Odu was late for work. The Claimant had noticed and left his post to report the lateness to management. The manager sent a text message to Ms Odu to enquire where she was. When Ms Odu arrived, she encountered the manager and the Claimant near the front door of the College and Ms Odu became angry with the Claimant because she believed that he was trying to get her into trouble for being late. Later that morning, she expressed her anger towards him by making a finger gesture of a ‘gun’ towards him and whispering ‘sadist’ in his ear when he walked past her. She also spat on the floor in front of another member of staff. The Claimant complained to the College.[15]The College raised this complaint with Ms Odu on 5 July 2022, and during that conversation Ms Odu alleged that the Claimant had during the incidents on 28 June 2022, made a highly offensive racist and sexist comment to her. It is important at this early stage to point out that the College never made any determination on that allegation against the Claimant. It should also be recorded that the Tribunal’s unchallenged finding is that the Claimant never made that remark, or indeed any racist or sexist remark to Ms Odu.[16]The matter was not raised by the College with the Claimant until September 2022, when a meeting took place between the Claimant and management. Following that meeting the Claimant and Ms Odu were each given a ‘standards’ letter, the terms of which were a summary of the meeting at which the Claimant had been told of the allegation made by Ms Odu and at which it had been decided to deal with the matter informally. The letter also reminded the Claimant of professional expectations with respect to behaviour. The Tribunal found that the Claimant felt aggrieved that the situation had been handled in this fashion, because he did not consider that he had behaved in a way which warranted being issued with the letter and because it contained a reference to potential further formal action, that it was, in effect, disciplinary action against him.[17]Shortly thereafter, the Claimant became too ill to work due to stress and remained signed off work until his employment terminated on 17 February 2023.[18]The Tribunal found what in fact had happened was that on 5 July 2022, Ms Odu was called to a meeting with HR to discuss what had happened on 28 June 2022. In that meeting she had falsely reported that the Claimant had used a seriously racial and offensive term, because she realised that the College was beginning to take more seriously the allegations which the Claimant had been making against her for some time, in order to shift focus away from her conduct and onto the Claimant. It also found that the Claimant had not been told about this allegation until September 2022. There is no challenge to any of these findings of fact.[19]The Claimant brought his employment tribunal claim in April 2023 and at a case management hearing on 11 October 2023, an agreed list of issues was set out in a case management order. Insofar as material to this appeal, they provided, “Protected Characteristics 1. The Claimant relies upon the following protected characteristics:(a) Race, and for the purposes of the claim he defines his race as “White” and accordingly any comparator is “non-White”;(b) Sex, namely male, and accordingly any comparator is female;(c) Age, and for the purposes of the claim it is defined as the over 60s age group. Direct race, sex and age discrimination (Equality Act 2010 section 13) (a) Race, and for the purposes of the claim he defines his race as “White” and accordingly any comparator is “non-White”; (b) Sex, namely male, and accordingly any comparator is female; (c) Age, and for the purposes of the claim it is defined as the over 60s age group. 15. Did the [First] Respondent do the following things: (a) Disregard or fail to reasonably act upon the complaints made about the Second Respondent’s conduct on 21 October 2021? (b) Ignore or fail to engage with the Claimant’s request for evidence to support the allegation made by Ms Odu on or around 2 September 2022 that the Claimant called her a “black cunt”? (c) Elect not to investigate or adjudicate upon the allegation made by Ms Odu on or around 2 September that the Claimant called her a “black cunt”?(d) Choose not to take or fail to take any or any reasonable disciplinary action against Ms Odu. 16. Was that less favourable treatment? The Tribunal will decide whether the claimant was treated worse than someone else was treated. There must be no material difference between their circumstances and the claimant’s. If there was nobody in the same circumstances as the claimant, the Tribunal will decide whether they were treated worse than someone else would have been treated. The claimant says they were treated worse than the Second Respondent (she is an actual comparator, but in the event found not to be an actual comparator, the Claimant relies upon a hypothetical comparator) … 17. If so, was it because of race (white), sex (male) and/or age (over 60s)?” THE TRIBUNAL’S REASONS Burden of Proof - Direction in Law

THE TRIBUNAL’S REASONS

[20]There is no criticism made in the ground of appeal concerning the self-direction of the Tribunal with respect to the burden of proof in discrimination allegations, which insofar as material stated as follows: - ‘137. Section 136 of the Equality Act provides, in essence, that where a claimant proves facts from which a tribunal could conclude in the absence of an adequate explanation that the respondent has unlawfully discriminated against the claimant (‘a prima facie case’), the tribunal must uphold the complaint unless the respondent proves that it did not discriminate. If a claimant establishes a prima facie case of differential treatment from which a tribunal could properly draw an inference that the treatment was because of one of the protected characteristics or because of a protected act, then it will be for the employer to prove that there was some other ground for the treatment. 138. In Martin v Devonshires Solicitors [2011] ICR 352, EAT, the EAT recognised that if a tribunal can make positive findings as to an employer’s motivation, it need not revert to the burden of proof rules at all. This point was later endorsed by the Supreme Court in Hewage v Grampian Health Board [2012] ICR 1054, SC. However, in Gay v Sophos plc EAT 0452/10, the EAT noted that it is good practice for a tribunal to address the issue of the burden of proof. 139. In Madarassy v Nomura International plc [2007] EWCA Civ 33, Mummery LJ explained the two stages of the process required by the statute as follows:(1) At the first stage the claimant must prove a “prima facie case”. That does not mean simply proving “facts from which the tribunal could conclude that the respondent ‘could have’ committed an unlawful act of discrimination”. As he continued, “56. … The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material from which a tribunal ‘could conclude’ that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination.(2) If the claimant proves a prima facie case the burden shifts to the respondent to prove that he has not committed an act of unlawful discrimination (paras 56-58). As Mummery LJ continues: “He may prove this by an adequate non-discriminatory explanation of the treatment of the complainant. If he does not, the tribunal must uphold the discrimination claim.”’

The Tribunal’s Findings in respect of the direct discrimination claims

[21]The relevant section of the Tribunal’s judgment starts at paragraph 213 of what is a lengthy, but clearly carefully considered, decision. In respect of Issue 15(a) which it set out in full and called ‘Allegation 1’, the Tribunal made a clear finding of fact that the College did not ‘fail to act upon the complaint’ made by the Claimant about Ms Odu’s conduct in October 2021. Referring to its previous findings of fact, it then found that a meeting with Ms Odu about her conduct both generally and specifically in relation to the Claimant had taken place which had resulted in an acceptance by Ms Odu that she ‘could come across as rude’. It specifically found, ‘this was a reasonable way of dealing with Ms Odu’s behaviour on 21 October 2021, given that at the time Ms Odu shouted in the lift she was panicking as the student was still missing.” The factual premise for this allegation of discrimination therefore fell away. The Claimant’s complaint had been ‘acted upon’ and there was nothing which could have amounted to discriminatory conduct. There is no challenge to those findings of fact and therefore no appeal in respect of the application of the burden of proof provisions is sustainable as a matter of logic.[22]Similar considerations apply to the appeal insofar as it concerns the appeal in respect of allegation 2, which is issue 15(b) of the Agreed List of Issues. At paragraph 215, the Tribunal found as follows, “The Tribunal also did not find as a matter of fact the First Respondent ignored or failed to engage with the Claimant’s request for evidence to support the allegation made by Ms Odu that the Claimant called her a “black cunt”. As noted above, the Claimant requested these details on 2 September 2022. He received a response to that email on 6 September 2022 from Ms Hayes, which gave an explanation as to why those details were not going to be provided. The Claimant’s request was not ignored. He was told that as Ms Odu had declined to make a formal allegation the matter was being treated as closed. The Tribunal did not uphold this allegation of direct discrimination.”[23]In those circumstances, it was therefore, not necessary for the Tribunal to consider whether the treatment was discriminatory: because it was not true to say that the Claimant’s request for evidence had been ignored or that the College had failed to engage with the request. It is not open on this appeal for the allegation to be recast in terms which focus on the failure to provide the evidence itself. The Tribunal dealt fully with the issue as it had been agreed in the List of Issues, which itself is not subject to challenge on appeal and which reflected the parties’ pleaded cases. In these circumstances, the burden of proof provisions do not come into play and any appeal based upon them is unsustainable.[24]Allegation 3, or 15(c) in the Agreed List of Issues, was accepted as factually accurate in its premise: the College did not investigate into or adjudicate upon whether Ms Odu had been called a “black cunt” by the Claimant. This, it seemed to me during argument, was the nub of the Claimant’s complaint. As he submitted, he wanted a ‘spotlight shone’ on this behaviour and felt that it was unacceptable that false allegations of this severity could be raised and then a decision taken by an employer not to get to the bottom of whether they were true or false. His concern was that Ms Odu had been ‘given a pass’ by the College and that it was outrageous for an allegation of such seriousness to be made and then for the accuser to ‘change her mind’ without any repercussions. He submitted that he had worked for the College for 13 years and they effectively turned their back on him. He disagreed with the conclusion reached by the investigating manager that the breakdown in the working relationship was the cause.[25]Allegation 4, otherwise known as issue 15(d), which was that the College had chosen not to take or failed to take any or any reasonable disciplinary action against Ms Odu, was also not a disputed fact. As the issues raised by the allegations are very similar and the Tribunal dealt with the allegations in a similar manner, it is sensible to take them together for the purposes of the appeal.[26]The Tribunal dealt with the issues of whether the failure to investigate the false allegation and/or to take disciplinary action against Ms Odu for making and withdrawing an allegation was discrimination at some length which I set out below for ease of reference:
“218. The Tribunal found that the “reason why” the First Respondent did not carry out an investigation or adjudication was because Ms Odu confirmed that she did not wish to pursue a formal allegation. The Tribunal were satisfied that this was the sole reason and were not presented with any evidence which indicated the Claimant’s race, sex or age had anything to do with this decision. The Tribunal bore in mind that when the Claimant raised a grievance about these matters, they were investigated and Mr Mitchell reached decisions on whether each of the matters about which the Claimant complained had occurred. 219. In respect of this allegation, the Tribunal did not consider that there were facts from which a Tribunal could conclude in the absence of an adequate explanation that the First Respondent had unlawfully discriminated against the Claimant. The only pertinent fact in respect of this allegation is that they did not carry out an investigation or adjudication, but the Tribunal did not consider that was a sufficient fact to shift the burden. In the event that the Tribunal are wrong in this respect, and the burden shifts given the serious nature of the allegation made, then the Tribunal found that the First Respondent did prove that there was some other ground for the treatment, namely the fact that Ms Odu had declined to pursue a formal allegation. 220. In respect of allegation 4, the Tribunal found as a matter of fact that the First Respondent did not take any or any reasonable disciplinary action against Ms Odu in September 2022 regarding what she alleged the Claimant had said to her. The Tribunal accepted that this could amount to ‘less favourable treatment’ of the Claimant as she had made what the Tribunal found to be an untrue allegation. However, the Tribunal did not find that the less favourable treatment was because of the Claimant’s race, sex, or age. 221. The Tribunal found that the “reason why” the First Respondent did not take any or any reasonable disciplinary action against Ms Odu in September 2022 was because while the Tribunal has found that the Claimant did not make the comment which Ms Odu alleged he had said, this was not a conclusion that the First Respondent reached in September 2022. They did not carry out an investigation because Ms Odu had declined to formally report the allegation. The Tribunal concluded that this was the reason why the First Respondent did not then take disciplinary action either. 222. In respect of this allegation, the Tribunal did not consider that there were facts from which a Tribunal could conclude in the absence of an adequate explanation that the First Respondent had unlawfully discriminated against the Claimant. The only pertinent fact in respect of this allegation is that they did not take any disciplinary action against Ms Odu in September 2022. The Tribunal did not consider this fact along was a sufficient fact to shift the burden. There was no evidence that the Claimant’s race, sex, or age influenced the First Respondent’s decision at this time.”

DISCUSSION

[27]I have scrutinised these reasons with considerable care considering both the seriousness of the false allegation which was raised against the Claimant and its central importance to the case. However, whichever way one looks at the Tribunal’s reasoning, it is not possible in my judgement to find any fault with it. The short answer to the ground of appeal is that having correctly directed itself on the law, the findings which I have set out above are ones of fact which the Tribunal was entitled to reach on the evidence.[28]Subjecting the reasons to a closer, more forensic, analysis, the Tribunal has applied the correct legal principles when considering the factual case. First, in respect of each allegation, the Tribunal adopts the ‘reason why’ approach in line with its self-direction based on the Martin v Devonshires decision and then, in accordance with its self-direction of Gay v Sophos, goes onto to make findings based on the two-stage Madarassyguidance.[29]In the ground of appeal, the following matters were said to be ones which would result in a prima facie case of discrimination being made out because they were said to be uncontested findings of fact:
“The First Respondent acted immediately upon an allegation made against the Claimant by the Second Respondent, a black female. o It issued a warning letter despite her saying that she “did not wish to pursue” her allegation. o Conversely, the First Respondent took no action whatsoever in response to numerous formal allegations made by the Claimant against the Second Respondent before and after the allegation that she had made against him. o The First Respondent ignored repeated requests to take action against the Second Respondent. o The First Respondent ignored repeated requests that the First Respondent intervene to protect him from further harassment by the Second Respondent.” o It issued a warning letter despite her saying that she “did not wish to pursue” her allegation. o Conversely, the First Respondent took no action whatsoever in response to numerous formal allegations made by the Claimant against the Second Respondent before and after the allegation that she had made against him. o The First Respondent ignored repeated requests to take action against the Second Respondent. o The First Respondent ignored repeated requests that the First Respondent intervene to protect him from further harassment by the Second Respondent.”
[30]I cannot accept these submissions as they are inconsistent with the Tribunal’s findings of fact which have not been challenged on this appeal. First, the College did not ‘act immediately’ on 5 July 2022 when Ms Obu made the allegation. It was only raised with the Claimant on 2 September 2022 when he was asked for his response and no further action was taken. Secondly, the Claimant was not issued with a ‘warning’ regarding the allegation. As the Tribunal found, the letter was a ‘standards letter’ and was issued both to the Claimant and to his actual comparator, Ms Odu in respect of their behaviour more generally. Thirdly, it is not correct to state that the College took ‘no action whatsoever’ in response to the Claimant’s allegations, or ‘ignored requests to take action’ against Ms Odu or requests to protect him from harassment. As I set out above, the Tribunal made a finding that the College did act after the Claimant raised concerns following the incident in October 2021 (§214 judgment) and again when he complained after the episode on 30 November 2021 (§§34, 214). As I have already stated, there was an investigation into the driving incident on 14 December 2021 which included review of the CCTV with the Claimant which did not support his version of events (§§41 and 42 Judgment).[31]Nor is it correct to state that the College ‘ignored’ the situation whether from the perspective of the deterioration of the relationship between Ms Odu and the Claimant or his allegations more specifically. For example, the Tribunal made findings that the College had repeatedly suggested mediation between the Claimant and Ms Odu. Moreover, Ms Odu was called into a meeting on 5 July to discuss the events of 28 June 2022 about which the Claimant had raised complaint (Judgment §§83 and 99). Additionally, the College had appointed an external investigator to consider the Claimant’s grievances (Judgment §§102, 218).[32]It follows that, contrary to the assertion in the ground of appeal, none of these factors were matters which could therefore have amounted to ‘something more’ than difference of protected characteristics which would allow a Tribunal in the absence of non-discriminatory explanation to conclude that there had been less favourable treatment on grounds of race, sex, or age. These were not factors which were available to the Tribunal to consider when determining whether a prima facie case was made out, much less still factors which meant that the Tribunal was bound to conclude that the burden had shifted.[33]I sought further clarity from the Claimant during the course of his submissions at the oral hearing as to whether there were other facts and matters in evidence upon which he said that the Tribunal ought to have relied or had regard when considering whether a prima facie case was established in respect of any of his allegations of direct discrimination. He was unable to identify any.[34]I have not derived any assistance from the decision in Iwuchukwu v City Hospitals Sunderland NHS Foundation Trust [2019] EWCA Civ 498; [2019] IRLR 1022 which is cited in the ground of appeal. That decision concerned very different facts to the present case and, as the Court of Appeal stated at §86 of its decision, these cases turn very much on the precise facts. The problem in Iwuchukwuwas that the EAT had failed to consider the burden of proof provisions and had misread the ET’s reasons. Neither of those considerations apply in the present situation.[35]Having determined that there was no other evidence in the case which could permit it to conclude that decision of the College not to investigate and/or discipline Ms Odu for making the false allegation was tainted by sex, race or age, the Tribunal nevertheless went on in its consideration of the discrimination allegation to look at the situation on the basis that the burden of proof had (contrary to its finding of fact) shifted. It also made a finding that the College had discharged that burden because the Tribunal was satisfied that the reason for the decision not to investigate Ms Odu’s allegation against the Claimant was because she declined to pursue it. So, even if there was an error in respect of the burden of proof, there was nevertheless a clear finding that the reason for any less favourable treatment was unrelated to any of race, sex or age.[36]It is unclear to me whether the appeal on the Ground as permitted to proceed really encompasses a challenge to the analysis of the Tribunal in respect of the non-discriminatory reason or ‘stage 2’ of the reverse burden test. However, in deference to the Claimant’s submission before me that it was 'outrageous’ that a false allegation could be made and that not investigated and in view of the fact that in the skeleton argument lodged by the Claimant, the point is put slightly differently to the Ground of Appeal, I have considered the point.[37]At paragraph 21 of the skeleton argument, it is suggested that the Tribunal was ‘bound to find’ that the decision of Ms Odu not to pursue her allegation was not a non-discriminatory basis for the College to decline to investigate because the Claimant’s complaint was about the fact that the allegation had been made in the first place, which was unaffected by its subsequent withdrawal. It is suggested that there is no logical link between the reason given and act/omissions complained of.[38]However, that rather sophisticated analysis is simply not how the issue was framed in the agreed list of issues. The concern of the Claimant at Tribunal was the absence of vindication in respect of the incident of 28 June 2022 and consequences for Ms Odu as a result. Secondly, it does not reflect the Tribunal’s findings of the reality of how the College approached the situation. As far as the College was concerned, an allegation had been made by Ms Odu against the Claimant which was extremely serious and would on any view warrant investigation. However, it was then dropped by the complainant. The Tribunal was entitled to conclude that the response of the College was effectively to breathe something of sigh of relief and try to use the moment as an opportunity to draw a line in the sand, reinforce the message about professional standards and hopefully get the parties to move on from their dispute. Whilst the Claimant might consider that decision to have been unfair to him, unduly optimistic or even weak, it is an explanation which has nothing to do with any protected characteristics of any person and is a non-discriminatory explanation. The fact that the College might have chosen to proceed nevertheless with an investigation after withdrawal of the complaint does not make their decision not to do so in any way linked to a protected characteristic. This was clearly a finding of fact open to the Tribunal on the evidence.[39]It is also relevant in my judgment that the Tribunal was satisfied that the Claimant had a genuine sense of grievance about the College seeking to deal with the dispute between him and Ms Odu in this manner. The Tribunal was entitled to find, as it did, that the Claimant felt he had done nothing wrong and certainly nothing to justify receiving a standards letter which he considered akin to disciplinary action. Therefore, as far as the Tribunal was concerned, he was not asking for an investigation of the circumstances in which Ms Odu first raised the allegation or why she said it or why she withdrew it. What he wanted was an investigation and adjudication culminating ‘finding’ in his favour that he had not actually said those words to Ms Odu. He wanted vindication in respect of the substance of the allegation. When the College declined to put in place a process for investigation, the Claimant was denied that outcome.[40]When asking itself the ‘reason why’ the College did not take further action on the allegation, the fact that the complainant had declined to pursue the allegation is clearly a material consideration which the Tribunal was entitled to take into account. That finding was not only open to the Tribunal but was one which fitted completely into its holistic and detailed consideration of the evidence and its comprehensive and balanced analysis of the case. The Tribunal was entitled to find that whilst the Claimant was aggrieved that the College were ‘giving [Ms Odu] a pass’ it was wholly unrelated to any personal characteristic of either Ms Odu or the Claimant.[41]In order to make good that point, the Tribunal then went onto consider whether there would have been different treatment of a hypothetical comparator. They said this (§223) “We considered if the First Respondent may have carried out an investigation or taken disciplinary action against Ms Odu if the Claimant had been female, or separately if he had been non-White, or separately if he had been younger (in the age group of 30s to 40s). We found that we had not been presented with any evidence from which we could safely or reasonably conclude that the First Respondent would have acted differently in respect of each comparator that we considered.”[42]No complaint is made about the findings in this paragraph. I consider that these findings were also ones which the Tribunal was more than entitled to reach on the evidence.

CONCLUSION

[43]The Tribunal gave a well-structured, detailed and carefully considered judgment which thoroughly investigated the discrimination allegation and analysed the evidence by reference to the various approaches to the reversal of the burden of proof provisions in s 136 Equality Act 2010 which have been developed in the well-known case law and on which it directed itself correctly. Whilst it accepted some of the Claimant’s evidence in preference to that of Ms Odu, it was entitled to conclude that the decisions which the College had taken in relation to handling the deteriorating relationship between the Claimant and Ms Odu were unrelated to the protected characteristics of anyone involved and did not amount to direct discrimination of the Claimant on grounds of race, sex or age. The application of the principles of discrimination law in respect of the burden of proof to the facts of the case was entirely proper and the Tribunal reached factual conclusions with respect to the discrimination claims which were open to it on the evidence.[44]The appeal is dismissed.