Mr S Janea v Castle School Pembrokeshire Ltd: 1600673/2024
EMPLOYMENT TRIBUNALS
Case No 1600673/2024
Between
Mr S JaneaClaimantCastle School Pembrokeshire LtdRespondentDate 6 March 2026
JUDGMENT
The complaint that the claimant was unfairly dismissed and claim for redundancy pay are struck out.
REASONS
Background
[1]The claimant complains of unfair dismissal and brings a claim for redundancy pay.[2]Section 108 of the Employment Rights Act 1996 requires a claimant to have not less than two years service to make an unfair dismissal complaint.[3]Section 155 of the Employment Rights Act 1996 requires the claimant to have not less that two years service to make a claim for redundancy pay.[4]The claimant was employed by the respondent for less than two years.[5]Therefore the claimant is not entitled to bring such a complaints.[6]The claimant has failed to give an acceptable reason, despite being given the opportunity to do so, why the complaint should not be struck out.[7]Accordingly, the complaint of unfair dismissal and claim for redundancy pay are struck out. The claimant’s other complaints are not affected by this judgment.[1]This is claim by Sarmil Janea (‘the Claimant’) against his former employer, Castle School Pembrokeshire Ltd, a company which on 2 January 2026 changed its name to Glenover House Limited and whose name, by consent, I amended for the purpose of these proceedings (‘the Respondent’).[2]The Claimant brings complaints of direct and indirect discrimination on grounds of race (being his Filipino nationality), and unauthorised deductions from wages (following the order of Employment Judge Powell of 9 May 2025, granting the Claimant permission to amend his claim). The complaints are resisted in their entirety by the Respondent.[3]At a case management preliminary hearing on 11 August 2025, Employment Judge Leith made directions to prepare the case for final - 1 - hearing and, with the input of the parties, drafted a List of Issues. The parties confirmed at the outset of the hearing that the List of Issues annexed to Employment Judge Leith’s orders represented the issues which I had to determine.[4]In the course of the final hearing, conducted at Pembrokeshire Law Courts from 4 to 6 March 2026, I heard oral evidence from the Claimant. For the Respondent, I heard from the following:: 4.1. Harriet Harrison (the Respondent’s Principal, at the relevant time) 4.2. Saj Madni (Head of 6th Form, at relevant time) 4.3. Rebecca Ward (Head of the Senior School, at relevant time)[5]Each witness I heard from adopted their written statement. I was provided with a paginated and indexed bundle of documents (‘the Bundle’). I also received oral and written submissions from Ms Madni for the Respondent and from the Claimant.[6]When the Claimant gave evidence and made his oral submissions, he did so through a Tribunal-appointed interpreter (Ms Howell, who joined the hearing remotely via video link). For all other aspects of the hearing, the Claimant communicated in English and without the assistance of the interpreter.[7]Both parties represented themselves (Ms Madni represented the Respondent). I explained the processes and procedures to them, checked their understanding, encouraged them to ask questions and gave guidance throughout. I was satisfied that both parties were able to fully engage in the process and present their respective cases to the best of his abilities. Indeed, I was impressed by the manner in which both Ms Madni and the Claimant conducted themselves throughout what is undoubtedly a daunting and stressful process.[8]I was grateful to the Claimant and Ms Madni for the assistance they provided and the work they undoubtedly undertook both before and during the hearing. I was also grateful to all the witnesses, including the Claimant and Ms Madni, who attended and answered the questions asked of them.[9]In reaching my findings and conclusions, I had full regard to all the evidence seen and heard, and the submissions I received. The relevant law Direct discrimination
The relevant law
[10]Direct discrimination is defined by section 13(1) of the Equality Act 2010 (‘EqA 2010’), and states as follows: - 2 - A person(a) (A) discriminates against another(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.[11]The “relevant protected characteristics” include race (per section 9 EqA 2010). Race includes nationality and national origin (s.9(1))[12]Direct discrimination is a comparative exercise. The circumstances of a comparator must be the same as those of the claimant, or not materially different (per section 23 of EqA 2010). The circumstances need not be precisely the same, provided they are close enough to enable an effective comparison: Hewage v Grampian Health Board [2012] UKSC 37 .[13]The important thing to note about comparators (whether actual or hypothetical) is that they are a means to an end. The crucial question in every direct discrimination case is what is the reason why the claimant was treated as he was? Was it because of the protected characteristic? Or was it wholly for other reasons?: Shamoon v Chief Constable of Royal Ulster Constabulary [2003] UKHL 11[14]Section 19 of the EqA 2010 defines indirect discrimination as follows:(1) A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B's.(2) For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B's if— (a) A applies, or would apply, it to persons with whom B does not share the characteristic, (b) it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it, (c) it puts, or would put, B at that disadvantage, and (d) A cannot show it to be a proportionate means of achieving a legitimate aim.[15]In summary, in order to make out a claim of indirect discrimination, there must be a provision, criteria or practice (‘PCP’), which the Respondent applied to the Claimant and which the Respondent applied or would apply to people who did not share the Claimant’s nationality. The PCP must have put or would have put people who share the Claimant’s protected characteristic (that is, his Filipino nationality) at a disadvantage compared to those who did not share his protected characteristic. The PCP must have put or would have put the Claimant at that disadvantage and the Respondent cannot show that the PCP is a proportionate means of achieving a legitimate aim. - 3 -[16]What constitutes a PCP should be construed broadly, It includes formal and informal practices, policies and arrangements and may in certain cases include one-off decisions (per Lamb v The Business Academy Bexley UKEAT/0226/15). However, it is not appropriate to interpret the phrase "provision, criterion or practice" so as to encompass all one-off decisions made by employers during the course of dealings with particular employees (per Ishola v Transport for London [2020] EWCA Civ 112). Standard & burden of proof: discrimination[17]The standard of proof in discrimination cases is the balance of probabilities. The burden of proof in discrimination complaints has two stages, as follows (per section 136 of the EqA 2010, Efobi v Royal Mail Group Ltd 2021 ICR 1263, SC; Madarassy v Nomura International plc [2007] IRLR 246 and Igen Ltd (formerly Leeds Careers Guidance) v Wong 2005 ICR 931, CA): 17.1. The Claimant has to prove facts from which the Tribunal could infer that discrimination has taken place; 17.2. If so, the burden ‘shifts’ to the Respondent to prove that the treatment in question was in no way because of a protected characteristic.[18]Mere assertions of discrimination are insufficient. There must be evidence (whether actual or circumstantial) that links the treatment to the protected characteristics: Efobi. A difference in status and a difference in treatment are not sufficient on their own to create a prima facie case of discrimination. There must be “something more”: Madarassy. Unauthorised deduction from wages[19]Section 13 of the Employment Rights Act 1996 (‘ERA 1996’) states as follows (so far as relevant):(1) An employer shall not make a deduction from wages of a worker employed by him unless— (a) the deduction is required or authorised to be made by virtue of a statutory provision or a relevant provision of the worker’s contract, or …(2) In this section “relevant provision”, in relation to a worker’s contract, means a provision of the contract comprised— (a) in one or more written terms of the contract of which the employer has given the worker a copy on an occasion prior to the employer making the deduction in question, or - 4 - (b) in one or more terms of the contract (whether express or implied and, if express, whether oral or in writing) the existence and effect, or combined effect, of which in relation to the worker the employer has notified to the worker in writing on such an occasion.[20]Section 14(1) of the ERA 1996 contains a relevant exception to the provisions of the section 13, as follows: (1) Section 13 does not apply to a deduction from a worker’s wages made by his employer where the purpose of the deduction is the reimbursement of the employer in respect of— (a) an overpayment of wages, or (b) an overpayment in respect of expenses incurred by the worker in carrying out his employment, made (for any reason) by the employer to the worker.[21]In summary, section 13 of the ERA 1996 does not apply where the purpose of the deduction was the reimbursement of the employer in respect of an overpayment of wages, or work-related expenses. If an employer discovers that such an overpayment has ‘for any reason’ been made to a worker, it may simply deduct the sum overpaid from a subsequent pay packet. The deduction will not fall within the scope of the protection of wages provisions. There is no limitation as to the amount that may be recovered or the period of time within which any recovery can be made (Key Recruitment UK Ltd v Lear EAT 0597/07). Standard & burden of proof: unauthorised deductions from wages[22]The standard of proof for a complaint of unauthorised deductions from wages is the balance of probs and the burden of proof is on the Claimant to show that there was an unauthorised deduction from his wages, as defined by section 13 of the ERA 1996.
Findings of fact
[23]I begin with some general observations on the evidence before me.[24]Some of the documentary evidence was only partial, in that an extract of the document rather than the whole document was included in the Bundle (which I do not raise as a criticism of the parties). Much of what was in issue in the case was not documented at all, which meant that the parties were also particularly reliant on witness evidence.[25]I found that all the witnesses I heard from tried to assist the Tribunal to the best of their abilities. I did not find that any witness was obstructive or deceitful. However, there were a number of factual disputes between the Claimant and the Respondent’s witnesses which I had to resolve. That is - 5 - one of my roles. I have done so based upon the evidence provided to me and mindful that the events discussed occurred between in 2023.[26]I also reminded myself of the limitations and challenges of memory. I will explain why I have preferred one account to another. It will invariably have been because of my assessment of evidence which arose much closer in time to the events in dispute. Recollections may be genuinely held but the events to which they relate have, in reality, been misremembered, a trait which is far more common that many realise. I also recognise that recollections, even inaccurate ones, can become more certain and more entrenched when challenged, as is the case in tribunal proceedings that, like here, involve some factual disputes.[27]I found the Respondent’s witnesses to be credible (in that they genuinely believed in the evidence they gave) and reliable (in that I could place weight on the evidence they gave). That was because their recollections was broadly consistent, measured and, importantly, often supported by the contemporaneous documentary evidence in the Bundle. As such, I was able to place weight on the oral evidence of the Respondent’s witnesses.[28]In contrast, I had a number of concerns as to the reliability of the Claimant’s evidence. I was prepared to accept that his evidence was credible (in that he genuinely believed that his evidence was true). However, aspects of his recollections were either not supported by the contemporaneous documentary evidence or, at times, were contradicted by the contemporaneous documentary evidence. As I detail in my findings (below), some of his evidence changed and some of it lacked plausibility. As such, I was unable to place the same amount of weight on the Claimant’s evidence as I could on the Respondent’s.[29]I have only made findings necessary to determine the issues before me. The parties raised a number of other matters which were not relevant to what I had to decide and it was no part of my function to consider and decide them.[30]The Respondent was an independent, fee-paying school. The Claimant was first employed by the Respondent on 27 April 2023 as a Teacher of Business (per his employment contract at [418] – [429] of the Bundle). The Claimant was paid at an hourly rate, which included rolled-up holiday allowance, was only paid during term-time, and there were no guaranteed hours, with the Respondent having the power to vary the number of hours worked. It was, properly read, a zero-hours, temporary contract.[31]The Respondent offered the Claimant a full-time, permanent contract, to start from September 2023 (at [100] of the Bundle), where he would be paid a salary (£28,000), rather than an hourly rate. The Claimant accepted the offer and started the 2023/24 academic year as a permanent member of staff. He was employed to teach business across the secondary school and the sixth form. That was clear from the initial approach made to him - 6 - by the then head of school, Michael Hughes, which referenced whether the Claimant would be interested in teaching business at GCSE and BTEC levels (at [118]). In addition, in one of the documents prepared by the Claimant for this litigation, he listed his qualifications and experience as follows (at [387], emphasis retained): My Professional Qualifications I hold:• Post-Graduate Diploma in Business Strategic IT• Graduate Diploma in Education• Education Workforce Council (EWC) registration – active and current throughout my employment at Castle School (gained 13 October 2023)• General Teaching Council Scotland registration (confirmed 13 October 2023) These qualifications establish that I met and exceeded all professional standards required to teach Business at Key Stage 3, Key Stage 4, and BTEC levels.[32]The Claimant’s ET1 claim form referred to him being employed as a Teacher of Business (at [8] of the Bundle) and in the body of his ET1 claim form, he referred to being offered a business teaching position (at [11]). In his witness statement, the Claimant referred to being a BTEC Business teacher and running a business after-school club.[33]I raise this because the Claimant relied upon a timetable which he said was his for the 2023/24 academic year, that is, starting from September 2023 (at [56] of the Bundle). He did so to suggest that Mrs Wade had fabricated evidence of her undertaking an observation of one of the Claimant’s lessons in September 2023 (to which I will return). The timetable relied upon by the Claimant showed him teaching not only business studies but also higher maths, foundation maths, drama, English, art, Spanish, and chemistry.[34]Until he sought to rely upon this timetable, the Claimant’s case had always been that he was employed as a teacher of business. He did not suggest that he was employed, or that he had the skills, knowledge or qualifications, to teach any other subject save for maths, still less the multiple arts and science subjects the alleged timetable referred to.[35]As such, I was compelled to conclude that the document relied upon by the Claimant was not an accurate reflection of his timetable and was not a timetable which had been produced and issued to him by the Respondent.[36]From the start of September 2023, concerns were raised as to the Claimant’s teaching. Mrs Ward was head of the senior school. Ms Madni was head of the sixth form. Mrs Ward joined the Respondent for the start of the 2023/24 academic year. However, Ms Madni had been head of the - 7 - sixth form when the Claimant first joined the Respondent in April 2023, during which time he had been teaching BTEC business .[37]Ms Madni explained how she had received complaints from students as to the Claimant’s lesson delivery, that the lessons felt scripted and AIgenerated, with the Claimant failing to answer questions as they arose. A number of students changed courses as a result. Ms Madni recalled speaking to the Claimant about the concerns that had been raised and the Claimant agreeing to provide written examples to the students to assist them in understanding the more complex aspects of the course.[38]Despite those concerns, the Respondent decided to offer the Claimant a full-time, permanent contract. Ms Madni’s recollection was that, although the Claimant needed support, it was hoped that this would have the desired effect in addressing the concerns raised about his teaching. In addition, and realistically, the Respondent recognised that hiring business teachers in Pembrokeshire (where the school was located) was challenging. They were desperate for staff and were prepared to take a chance on the Claimant.[39]As part of the further support provided to the Claimant, his lessons were observed by other members of staff, including Mrs Ward. I did not accept the Claimant’s allegation that Mrs Ward did not observe his lesson in early September 2023. There was a contemporaneous report of the observation in evidence from Mrs Ward (at [59] of the Bundle) and, for reasons explained above, I did not accept the accuracy or provenance of the timetable that the Claimant relied upon to suggest that Mrs Ward was wrong in her recollection.[40]In addition to lesson observations, the Claimant was taken off timetable and undertook a week of team teaching with another remember of staff, Dr Riley.[41]As mentioned, the concerns regarding the Claimant’s teaching continued into the new academic year. Ms Madni’s evidence was that concerns were again raised by students from the start of September 2023, around similar issues. The complaints became daily and started to be received from parents as well. Matters came to a head when it emerged that pupils in Years 7 and 8 were being opted out of the optional business studies classes run by Claimant at the behest of their parents.[42]As a result of all these matters, a meeting was convened with the Claimant, attended by Mrs Harrison and Ms Madni, on 25 September 2023.[43]The parties recollections of what was discussed at the meeting differed. 43.1. The Claimant said that during the meeting, he was told that students had complained about his accent and that he was asked by Mrs Harrison which part of the Philippines he came from. - 8 - 43.2. Both Mrs Harrison and Ms Madni denied that the Claimant was told that students had complained about his accent or that he was asked about where in the Philippines he was from. What they recalled was sharing with the Claimant the concerns about his teaching and, in particular the decline in Year 7 and 8 pupils opting for business studies, because of his teaching.[44]Ms Madni recalled that it was the Claimant who raised issues with his accent. I found her evidence in that regard to be compelling. After the meeting, the Claimant emailed Mrs Harrison and Ms Madni and referred to “[T]he unfortunate incidents involving discriminatory remarks targeting my accent” (at [90] of the Bundle). Ms Madni responded to the Claimant in her email of 2 October 2023 as follows (at [61]): Oh no Sarmil! She [Mrs Harrison] mentioned several times in our meeting that it was not your accent but the fact that pupils were asleep in your lessons and it was lesson deliver [sic]. She kept saying it was not your accent…[45]Ms Madni referred to the same in her witness statement and the fact that when the concerns about the Claimant’s teaching were raised with him, he suggested that perhaps the students did not understand his accent.[46]There were other factors which supported the Respondent’s recollection that there were no concerns raised by Mrs Harrison or Ms Madni about the Claimant’s accent during the meeting of 25 September 2023, as follows: 46.1. The Claimant had been employed by the Respondent since April 2023. If, as alleged, the Respondent was not happy with the Claimant’s accent and, as alleged, reduced his hours, why did the Respondent offer him a permanent contract for the 2023/24 academic year? The Claimant’s accent was exactly the same from April to July 2023 as it was in September 2023. Had the Respondent been opposed to the Claimant’s accent and the alleged impact it was having on his teaching and communication with students, the easiest thing to do would have been to simply let him go at the end of July 2023. 46.2. Alternatively, if, as alleged, the Respondent was not happy with the Claimant’s accent and wanted all teaching to be undertaken with no or minimal accents, why did it not simply end his employment in September 2023? As will be seen, it was not in dispute that that was not what happened. Rather, the Respondent offered the Claimant an alternative role which, importantly, included him continuing to both teach and provide learning support in the classroom. 46.3. By the Claimant’s own account, the meeting of 25 September 2023 was the only occasion during his entire employment with the Respondent, from April to December 2023 that there was ever any - 9 - discussion about his accent. In my judgment, it was not plausible that if there had been concerns from students, parents or the Respondent about the Claimant’s accent, it would have only been raised on one isolated occasion.[47]For all those reasons, I found that the only reference to the Claimant’s accent in the meeting on 25 September 2023 was by the Claimant himself, who raised it as a possible reason for why the students had raised concerns about his teaching. I also found that during the meeting Mrs Harrison explained to the Claimant, more than once, that the concerns had nothing to do with his accent and everything to do with the manner and methods of his teaching.[48]As indicated, the Respondent made a proposal to the Claimant, in light of the concerns that had been raised and, importantly, the impact of so many students opting out of his classes. That proposal was that he continued teaching BTEC Business to the sixth form on Mondays and Tuesdays, and took up the role of Learning Support Assistant (‘LSA’) for the rest of the week. It was also proposed that he would move back to being paid at an hourly rate. The Claimant asked for time to consider this proposal, which the Respondent gave him.[49]I have deliberately characterised this as a proposal. At this stage, there was no evidence of the Respondent imposing a change to the Claimant’s role or his contract. It always remained open to the Claimant to reject the proposal. In effect, the Respondent was making him an offer of a revised contract, reflecting the fact that there was no longer sufficient demand to justify the need for a teacher of business to Years 7 and 8. There remained a need for a BTEC Business teacher for the sixth form and also there was a need for an LSA.[50]After having an opportunity to consider the offer, the Claimant responded to the proposal on 2 October 2023, first with Ms Madni and then in writing (at [62] - [63] of the Bundle), wherein the Claimant clearly and unambiguously accepted the offer to teach BTEC Business to the sixth form on Mondays and Tuesdays, at an hourly rate.[51]It was the Respondent’s case that whilst the Claimant accepted the twoday BTEC Business teaching role, he declined the LSA role, in order for him to be able to look for, and secure, alternative teaching roles for Wednesdays, Thursdays and Fridays.[52]That appeared to be consistent with the Claimant’s written evidence, wherein, referring to the meeting on 25 September 2023, the Claimant said this (at Paragraph 14 of his witness statement): My contract as abruptly varied – limited to Sixth Form; hours reduced from 37.5 to 10 per week. - 10 -[53]The Claimant made no reference to accepting or undertaking the LSA role. In his resignation email of 1 January 2024, he referred to his “resignation from the position of bilingual teacher of BTEC Business” (at [119] of the Bundle). He made no reference to any LSA role that he was either undertaking or resigning from. The Claimant’s November 2023 payslip was in evidence. It recorded him being paid for six days work for the month (at [417]). In an internal email from Mrs Harrison to the Respondent’s accountants on 4 December 2023, she stated the following in respect of the Claimant (at [107]): The ongoing arrangement is a daily rate of £154 (which already incorporates holiday pay). He does 2 days per week.[54]The Claimant has never suggested that he was underpaid in the months following his change of role (save for December 2023 which, as will be explained, related to an alleged overpayment being recouped). As such, there appeared from the evidence to be no suggestion by the Claimant that he had accepted the LSA role or was ever undertaking the LSA role[55]However, in his oral evidence, and seemingly for the first time, the Claimant said that he had accepted the LSA role, and that he did so at the same time and in the same correspondence that he accepted the two-day BTEC Business role. On examination of that correspondence, there was no evidence of the Claimant accepting the LSA role.[56]In light of the evidence which was before me, I found that the Claimant accepted the two-day BTEC Business role but chose to decline the LSA role for the reasons explained by the Respondent, namely to enable him to apply for and secure alternative teaching roles.[57]Somewhat confusingly, on the same day that the Claimant accepted the proposed changes to his terms of employment (namely 2 October 2023), he also shared with the Respondent advice he had received from Citizens’ Advice “to continue working based on the original contract” (at [83] of the Bundle).[58]For reasons never explained, either before or since sending that email, the Claimant gave clear and unequivocal notice of his acceptance of the revised contractual proposal of working two days per week teaching BTEC Business. Given that he then performed that contract (by teaching BTEC Business for two days per week until the end of the autumn term) and given that the Respondent paid him for that work, that was, in law, a clear and mutual variation of the Claimant’s contract.[59]For all those reasons, the Respondent did not terminate the Claimant’s full-time contract. The Respondent proposed an alternative contract (BTEC plus LSA), the Claimant made a counter-proposal (BTEC only), which the Respondent accepted and the Claimant confirmed his agreement to the revised contract in clear and unequivocal terms. - 11 -[60]As noted, the Claimant was taking advice at the time. It was reasonable to assume that he would have been made aware of the fact that he had, prior to the meeting on 25 September 2023, a binding full-time permanent contract and that the terms of the contract could only be changed by agreement. It always remained open to the Claimant to refuse any changes to his contract. He did not do that. He considered the proposed changes, made a counter-proposal and the parties agreed to that counter proposal.[61]In short, the reason the Claimant’s contract changed from October 2023 was because he agreed to the changes. The catalyst for the initial proposal by the Respondent to vary his contract came from the decline in pupils wishing to attend the Claimant’s business classes. There was no longer the demand to justify a full-time teacher of business.[62]As a result of the partes’ agreement to change the terms of the contract of employment, the Claimant’s pay reduced, as he was only working two days per week, at a rate of £154 per day. That daily rate was evidenced by the Claimant’s November 2023 payslip (at [417] of the Bundle) and the email of 4 December 2023 from Mrs Harrison to the Respondent’s accountants (at [107]). Mrs Harrison confirmed in her oral evidence that the Respondent contracted-out its payroll operations to its accountants.[63]It was also consistent with the SA302 HMRC document in evidence regarding the Claimant’s employment with the Respondent (at [111] of the Bundle). That showed the Claimant’s pay for May, June and July 2023 fluctuating (when he was employed on a zero-hours, short-term contract), no pay for August 2023 (as he was not entitled to be paid during school holidays under his April 2023 contract), his full-time salary for September 2023 (£2,222,33 gross), followed by his revised salary for October 2023, following the agreed changes to his contract (£1,420.16 gross).[64]The SA302 then showed that, in error, the Claimant was paid his old fulltime salary in November 2023 (£2,333.33)[65]Mrs Harrison’s email of 4 December 2023 to the Respondent’s accountants, where she informed them of the Claimant’s daily rate and working hours, continued as follows (at [107] of the Bundle): In November he did 6 days as he had 2 days off sick. Please can you calculate accordingly.[66]The Respondent’s accountants replied the same day (at [108] of the Bundle): I have revised Sarmil November pay and the total overpayment made is £877.91. - 12 - The revised payslip has been sent to Sarmil and I have sent across the amended payroll summary for your records. Could you please advise if the deduction of £877.91 is to be taken from Decembers pay or if you will be making separate arrangements with Sarmil to recover the overpayment of £877.91[67]I asked the Claimant in his oral evidence whether he agreed with the Respondent’s assertion that he had been overpaid in November 2023 and that overpayment was recouped from his December 2023 pay. The Claimant told me that he did not know.[68]The answer was clearly to be found in the documentary evidence. There were two bank statements in evidence, one from the Respondent (at [109] of the Bundle) and one for the Claimant (at [243]). They showed the Respondent paying and the Claimant receiving the sum of £1,651.35 on 24 November 2023 in wages. Given the Claimant’s daily rate and that he worked six days in November 2023, the accountants concluded, correctly, that the Respondent had overpaid the Claimant by the sum of £877.91. As a result, a revised payslip was issued for November 2023 (at [417]) and the overpayment was recovered from the Claimant’s December 2023 pay (the net figure of £789.60). In effect, the Claimant was paid double his wages for November 2023 and the overpayment was recouped in December 2023.[69]That fact was again reflected in the HMRC records, which recorded that the Claimant’s revised and adjusted salary for November 2023 was £924 gross/£798.60 net, as it was for December 2023 (at [111] of the Bundle)[70]In summary, the Respondent paid the Claimant his former full-time salary in November 2023. That was an error on the part of payroll. The Claimant was, by that time, no longer a full-time, salaried employee. He had, by agreement and as I have detailed, changed his terms to that of a two-day per week, hourly rate contract. As such, the Claimant was overpaid in November 2023 and the Respondent recovered the overpayment from his December 2023 pay.[71]On 1 January 2024, the Claimant tendered his resignation to take effect immediately. He started ACAS Early Conciliation on 13 January 2024, it concluded on 16 January 2024 and he presented his claim to the Tribunal on 22 February 2024. Analysis & conclusions[72]I considered & determined the complaints per the agreed List of Issues (at [51] – [53] of the Bundle), as follows. Direct discrimination on grounds of race - 13 -[73]It was not in dispute that the Claimant is of Filipino nationality. He compared his treatment to people of white British origin and specifically compares his treatment to that of Mrs Ward.[74]The allegation of less favourable treatment was as follows: 74.1. That the Respondent terminated the Claimant’s full-time contract of employment and offered an alternative contract on less favourable terms.[75]As found above, the Respondent did not terminate the Claimant’s full-time contract. It proposed changes to his terms of employment, in light of falling demand for the lessons that the Claimant was delivering in the senior school, and more general concerns as to his capability. The Claimant considered the proposal and made a counter-proposal, which the Respondent agreed to. As such, in both fact and law, the Claimant’s fulltime contract of employment was varied by agreement between him and the Respondent. There was no unilateral termination.[76]It is right that the Respondent offered an alternative contract. However, it is also right that the Claimant was under no obligation in law to accept the offer. He considered the proposal, took advice from Citizens’ Advice and, rather than accept or reject the proposal, he made a counter-proposal, which the parties agreed to.[77]For those reasons, it was not the case that the Respondent terminated the Claimant’s full-time contract of employment. To the extent that its offer of alternative terms was unfavourable treatment, there was no evidence whatsoever from which I could infer that the decision to do so had anything to do with the Claimant’s nationality. In contrast, there was ample, documented and cogent contemporaneous evidence that the reason for the proposal was two-fold: the decline in demand for lessons being taught by the Claimant; and, by association, increasing concern as to his teaching capabilities.[78]Whilst the Claimant may disagree with the Respondent’s assessment of his capabilities as a teacher and may take issue with the Respondent’s concern at the decline of demand of his classes (indeed, he may even take issue with whether there was any decline, although that was not his evidence), what none of that shows is that his nationality had anything whatsoever to do the with the meeting on 25 September 2023 and the proposal put forward by the Respondent.[79]Given that analysis, it is not necessary to consider any comparative treatment. However, had I done so, I would have concluded that Mrs Ward was not an appropriate comparator. She was head of the senior school and a member of the senior management team. No concerns were raised regarding her teaching by pupils, parents or staff. - 14 -[80]In the alternative, if a hypothetical comparator were constructed and utilised (that is, a teacher who shared all the same characteristics as the Claimant, save that they were white British, not Filipino), I have no hesitation in concluding that, given my findings of fact in resect of the declining demand for classes and the concerns regarding capability, the Respondent would have treated a white teacher in exactly the same way it treated the Claimant, namely by making a proposal to vary his contract, giving him the opportunity to consider that proposal, allowing him to put forward a counter-proposal, agreeing to the terms of that counter-proposal and abiding by the terms of the mutually agreed varied contract.[81]For all those reasons, the allegation of direct discrimination on grounds of race was not made out and is dismissed. Indirect discrimination on grounds of race[82]The Claimant relied on one alleged PCP which he says was applied to him by the Respondent and placed him at a disadvantage because of his nationality.[83]The alleged PCP was as follows: 83.1. A policy of requiring teaching to be done in English without an accent or with only a minor accent.[84]The Claimant said that the PCP was applied to him and put him to the following disadvantage: 84.1. It undermined his professional capabilities, disregarded his years of experience, registration and qualifications.[85]On the Claimant’s case, the alleged PCP was applied to him during the meeting on 25 September 2023. His case was that he was told that his contract was being changed and his classes reduced because students were falling asleep in his classes and some of them were having difficulties understanding his accent (per the Claimant’s oral evidence).[86]On his own case, this was the first and only time concerns regarding his accent were raised with him by the Respondent.[87]For reasons I have explained, I did not find that the Respondent raised concerns with the Claimant’s accent at the meeting on 25 September 2023. Rather, when sharing with the Claimant the concerns raised by parents and students, it was the Claimant who suggested that perhaps the students did not understand his accent. As found, Mrs Harrison repeatedly informed the Claimant that the concerns had nothing to do with his accent and everything to do with how he was conducting his lessons. It follows that the one occasion that the Claimant says that the Respondent applied the alleged PCP to him did not occur. As such, the Respondent never applied the alleged PCP to the Claimant. - 15 -[88]There is, in my judgment, good reason why the Respondent never applied the alleged PCP to the Claimant. It is because it never had a PCP that required teaching to be done in English without an accent or with only a minor accent. There was no evidence at all to support even the inference that such a PCP was operated by the Respondent. In contrast, there was ample evidence of why the Respondent made proposals to change the Claimant’s contract which, I repeat, the Claimant agreed to of his own free will and volition, and after taking advice.[89]The Claimant has, at best, misremembered the meeting of 25 September 2023. He raised issues with his accent, not the Respondent. In reality, the Respondent had no concerns whatsoever with the Claimant’s accent. Their concerns, and those of the students and parents, were with the Claimant’s approach to teaching, his failure to answer questions and his failure to adequately or effectively explain complex issues to the students.[90]The Respondent did not have a PCP of requiring teaching to be done in English without an accent or with only a minor accent. As the Respondent did not have the alleged PCP, it did not apply it to the Claimant or to any other teacher, and it could not have caused the Claimant any disadvantage.[91]For those reasons, the complaint of indirect discrimination on grounds race is not made out and is dismissed. Unauthorised deduction from wages[92]This complaint related to the deduction from the Claimant’s wages of December 2023.[93]As I have found, the Respondent overpaid the Claimant in November 23 and recovered that overpayment from his wages for December 2023.[94]Section 13 of the ERA 1996 protects workers against unauthorised deductions from their wages. However, that protection does not apply to a deduction from a worker’s wages where the purpose of the deduction is a reimbursement of the employer in respect of an overpayment of wages (per section 14 of the ERA 1996).[95]The purpose of deduction of December 2023 was to reimburse the Respondent in respect of the overpayment of wages which occurred in November 2023. It was a deduction which was exempt from the protection afforded to workers by section 13 of the ERA 1996.[96]As such, the complaint of unauthorised deduction from wages is not made out and is dismissed. - 16 - Order posted to the parties on Approved by: 21 April 2026