Ms S Byfield v The Governing Body of Whitmore High School and others: 1601026/2022
EMPLOYMENT TRIBUNALS
Case No 1601026/2022
Between
Ms S ByfieldClaimantThe Governing Body of Whitmore High School and othersRespondent
Before
Employment Judge R HarfieldMs O’Callaghan (instructed by Counsel) for respondentDate 3 May 2024
JUDGMENT
[1]The Claimant’s complaint of harassment related to race about the Chair of Governor’s letter of 25 November 2021 is well founded and is upheld against the First and Second Respondent;[2]The Claimant’s other complaints against all three Respondents of harassment related to race and direct race discrimination are not well founded and are dismissed.[3]The Claimant’s successful complaint will be listed for a remedy hearing.
REASONS
Introduction – the procedural background to these proceedings
Introduction
[1]The claim form was presented on 1 September 2022 alleging direct race discrimination and harassment related to race [4-20]. An ET3 response form was filed on behalf of all respondents denying the complaints [21– 38]. A case management hearing took place before Employment Judge Webb on 23 December 2022. The issues were clarified in the course of that hearing and a list of issues was produced by EJ Webb [52-55]. The parties were directed Case No: 1601026/2022 2 that if they considered the list was incomplete they were to write to the tribunal by 13 January 2023. The parties were told if they did not write in the list would be treated as final unless the tribunal decides otherwise. Neither party wrote in to express any concerns about the list of issues. EJ Webb also listed the final hearing and made case management orders to get the case ready for that hearing. It was identified at that case management hearing that the claimant was relying upon three comparators.[2]In advance of the final hearing listed for 3 – 6 July 2023 the respondents made an application for an anonymisation order. The claimant made an application for further information about the 3 comparators. There was then a further application to rely upon a fourth comparator. The applications were to be considered at the start of the hearing.[3]At the July 2023 hearing we had before us a core bundle and index extending a core bundle and index extending to 592 pages. We had an additional bundle of 76 pages. Weto 592 pages. We had an additional bundle of 76 pages. We alsoalso hadhad,, by by agreementagreement,, some additional documents some additional documents which werewhich were the respondents’the respondents’ response to response to the claimant’s the claimant’s application for further and better particularsapplication for further and better particulars about about the first three comparators,the first three comparators, aann occupational healthoccupational health report of 14 December report of 14 December 20212021,, aan email chain betweenn email chain between 15 June and 22 June15 June and 22 June 2020 relating to2020 relating to the the claimant’s claimant’s shieldingshielding and aand a powerpoint powerpoint aboutabout training given on safeguarding training given on safeguarding and professional conduct. and professional conduct. During the course of the hearing weDuring the course of the hearing we raised raised an an issue issue as to the degree of redactions as to the degree of redactions in a safeguardingin a safeguarding strategy meeting documentstrategy meeting document andand wewe thenthen received a further copy with reduced redactions. We had an received a further copy with reduced redactions. We had an agreed cast list and an agreed chronology.agreed cast list and an agreed chronology. We had an agreed list of We had an agreed list of individuals to be subject toindividuals to be subject to a restricted reporting order and anonymisation a restricted reporting order and anonymisation order.order.[4]We had We had a a written witness statement written witness statement from from the claimantthe claimant, two witness , two witness statements from Mr Robinsonstatements from Mr Robinson (the second statement addressed the first three (the second statement addressed the first three comparators)comparators), one, one statementstatement from Dr Brownfrom Dr Brownee, two, two statementsstatements from Ms from Ms BallantineBallantine (the second(the second statementstatement followed followed our our giving permission to giving permission to the the claimantclaimant to rely on the fourth comparator).to rely on the fourth comparator).[5]At the start of the July 2023 we heard the claimant’s application to add a At the start of the July 2023 we heard the claimant’s application to add a fourth comparator. Having heard submissions from the parties we granted fourth comparator. Having heard submissions from the parties we granted permission to the claimant to rely opermission to the claimant to rely on the fourth comparator. We gave oral n the fourth comparator. We gave oral reasons at the time. Our permission was caveated that we gave permission reasons at the time. Our permission was caveated that we gave permission on the basis that the claimant understood she faced a risk that there would be on the basis that the claimant understood she faced a risk that there would be little evidencelittle evidence before usbefore us about the circumstances of the fourth coabout the circumstances of the fourth comparator as mparator as the respondents had foreshadowed thatthe respondents had foreshadowed that there were limits as to the evidencethere were limits as to the evidence MMr Browne and Ms r Browne and Ms BallantineBallantine could give. We highlighted that these witnesses could give. We highlighted that these witnesses could only be fairly asked about what they knew, there were no agreed facts could only be fairly asked about what they knew, there were no agreed facts about comparator about comparator four, and the claimantfour, and the claimant’s’s side were not themselves putting side were not themselves putting forward witness evidence about the fourth comparator. We said the addition of forward witness evidence about the fourth comparator. We said the addition of the fourth comparator was not a vehicle to call additional witnesses or the fourth comparator was not a vehicle to call additional witnesses or produce new documents. produce new documents.[6]We made a restrictedWe made a restricted reporting order and anonymisation order prohibiting the reporting order and anonymisation order prohibiting the identification of Child A, the mother of Child A, the father of Child A, and identification of Child A, the mother of Child A, the father of Child A, and comparators 1, 2, 3 and 4. These orders remain in place indefinitely. comparators 1, 2, 3 and 4. These orders remain in place indefinitely. Case No: 1601026/2022 3[7]We heard oral evidence from the claimant on thWe heard oral evidence from the claimant on the afternoon of daye afternoon of day 1. On day 2 1. On day 2 we heard oral evidence from 3R and Ms we heard oral evidence from 3R and Ms BallantineBallantine. Ms . Ms BallantineBallantine completed completed her evidence on day 3. Mr Browne then gave evidence. Before the lunch her evidence on day 3. Mr Browne then gave evidence. Before the lunch break on day 3 Employment Judge Harfield raised with the parties break on day 3 Employment Judge Harfield raised with the parties a concern a concern that that witnesses were being asked questions about the actions of other witnesses were being asked questions about the actions of other individualsindividuals who were not being who were not being called as witnessescalled as witnesses. The questions were . The questions were allegingalleging that such other individuals, such as Mr Redrup, had committed acts that such other individuals, such as Mr Redrup, had committed acts of race discrimination. We said we were not inviting any particular applications of race discrimination. We said we were not inviting any particular applications but were simply flagging it up for consideration, and to gibut were simply flagging it up for consideration, and to give time for the ve time for the parties to take instructionsparties to take instructions. We identified our concern. We identified our concern we may be ultimately we may be ultimately asked to make findings about the decision making of people that we had not asked to make findings about the decision making of people that we had not heard heard evidence evidence from.from.[8]After the witness evidence had completedAfter the witness evidence had completed,, the respondents made an oral the respondents made an oral application to call three further witnessesapplication to call three further witnesses:: Mr Redrup, Ms Devonish, and Ms Mr Redrup, Ms Devonish, and Ms James. James. In essence, the application came about because of a lack of common In essence, the application came about because of a lack of common understanding, which had become increasingly evident through the cross understanding, which had become increasingly evident through the cross examiexamination of the respondents’ witnesses, about whether the complaint nation of the respondents’ witnesses, about whether the complaint concerning theconcerning the referrreferral ofal of the claimant to a safeguarding strategy meeting the claimant to a safeguarding strategy meeting before any internal investigation, was levelled just against 3R or also against before any internal investigation, was levelled just against 3R or also against other employees of 2R. This in turn led to a further discussion with the parties other employees of 2R. This in turn led to a further discussion with the parties about the List of Issues and whether the claiabout the List of Issues and whether the claimant needed to make an mant needed to make an application to amend. application to amend. The respondents’ position was that the claimant did The respondents’ position was that the claimant did need such permission, and they objected to it. We deliberated and then made need such permission, and they objected to it. We deliberated and then made a decision, supported with oral reasons, that the claimant should have a decision, supported with oral reasons, that the claimant should have permission tpermission to further particularise the complaint o further particularise the complaint concerning referral concerning referral to to thethe safeguarding strategy meeting so that it covered the actions of Mr Redrup and safeguarding strategy meeting so that it covered the actions of Mr Redrup and Ms Devonish as well as 3R. In essence, we accepted that there had been aMs Devonish as well as 3R. In essence, we accepted that there had been a misunderstanding between the parties as misunderstanding between the parties as to exactly who that complaint was to exactly who that complaint was levelled against, and the interests of justice meant that the further levelled against, and the interests of justice meant that the further particularisation should be allowed. In turn this meant the respondents should particularisation should be allowed. In turn this meant the respondents should have permission to call their additional witnesses. Indeed, the claimanthave permission to call their additional witnesses. Indeed, the claimant had had never objected to additional witnesses being called. In the course of the never objected to additional witnesses being called. In the course of the hearing Mr Adkins also clarified that the allegation in the List of Issues of hearing Mr Adkins also clarified that the allegation in the List of Issues of “pursue allegations of racism against the claimant” related to a letter sent by “pursue allegations of racism against the claimant” related to a letter sent by the Chair of Goverthe Chair of Governors. EJ Harfield said in the circumstances she would nors. EJ Harfield said in the circumstances she would send out a short case management order setting out the further send out a short case management order setting out the further particularisation of the claim so that everyone was clear what the issues in the particularisation of the claim so that everyone was clear what the issues in the case were going forward. case were going forward.[9]There was one day of hearinThere was one day of hearing time left and it was hoped that at least some of g time left and it was hoped that at least some of the additional witnesses would be able to give evidence that day. the additional witnesses would be able to give evidence that day. This did not This did not ultimately prove possible and therefore there was no hearing on 6 July 2023. ultimately prove possible and therefore there was no hearing on 6 July 2023. EJ Harfield made directions for the provision of EJ Harfield made directions for the provision of witness statements from the witness statements from the additional witnesses and for a further 2 day listing. additional witnesses and for a further 2 day listing.[10]An additional two days were listed for 20 and 21 November 2023. The parties An additional two days were listed for 20 and 21 November 2023. The parties then asked if a third day could be added as timings were looking tight. At that then asked if a third day could be added as timings were looking tight. At that time it was time it was not possible for the tribunal to reconvene that week for a third day. not possible for the tribunal to reconvene that week for a third day. Nearer the time of the hearing in fact the tribunal panel had additional time Nearer the time of the hearing in fact the tribunal panel had additional time freed up and the clerk did investigate whether it would be possible to add freed up and the clerk did investigate whether it would be possible to add more time but it did not ultimatemore time but it did not ultimately prove possible. ly prove possible. Case No: 1601026/2022 4[11]In advance of the reconvened hearing the claimant made an application 11.In advance of the reconvened hearing the claimant made an application questioning the veracity of Ms questioning the veracity of Ms BallantineBallantine’s ’s previousprevious evidenceevidence about about comparator 4 and seeking disclosure of documents. The parties also made a comparator 4 and seeking disclosure of documents. The parties also made a joint joint application to add a further additional witness, Ms Forte. EJ Harfield gave application to add a further additional witness, Ms Forte. EJ Harfield gave permission for Ms Forte to be calledpermission for Ms Forte to be called. The tribunal’s principal concern. The tribunal’s principal concern remained that indremained that individuals who were facing serious allegations have the ividuals who were facing serious allegations have the opportunity to give evidence.opportunity to give evidence.[12]It was not possible to decide the dispute about comparator 4 by It was not possible to decide the dispute about comparator 4 by correspondence, and therefore it was dealt with at the start of the reconvened correspondence, and therefore it was dealt with at the start of the reconvened hearing.hearing. We heard oral submissions and deliberated. We initially gave an oral We heard oral submissions and deliberated. We initially gave an oral decision that the application was decision that the application was refused refused on the basis that permission to rely on the basis that permission to rely on comparator 4 had been given in caveated circumstances to start with, and on comparator 4 had been given in caveated circumstances to start with, and because despite having spent fairly extensive time reviewing all of the panel’s because despite having spent fairly extensive time reviewing all of the panel’s notes we could not finnotes we could not find a record in our notes of the pad a record in our notes of the particular piece of rticular piece of evidence alleged to have been given by Ms evidence alleged to have been given by Ms BallantineBallantine that the claimant was that the claimant was now seeking to impugn. now seeking to impugn. Ms O’Callaghan then appropriately tried to further Ms O’Callaghan then appropriately tried to further direct the tribunal as to direct the tribunal as to where in Ms where in Ms BallantineBallantine’s evidence the ’s evidence the observation observation about seeing about seeing comparator 4’s terms of reference was said. We were then comparator 4’s terms of reference was said. We were then ultimately able to find a record of the comment, which was tucked away as an ultimately able to find a record of the comment, which was tucked away as an aside in a much longer answer aside in a much longer answer about something else. about something else. We did then raise with We did then raise with Mr Adkins as to whether he wanted us to revisit our earlier decision. Mr Adkins as to whether he wanted us to revisit our earlier decision. By this By this time Mr Adkins time Mr Adkins thought that clarification he had received from Ms O’Callaghan thought that clarification he had received from Ms O’Callaghan about terms of reference for comparator 4 about terms of reference for comparator 4 meant that there meant that there was not much to was not much to bebe gained by pursuing the point. Ms O’Callaghan then explained that gained by pursuing the point. Ms O’Callaghan then explained that there there may be confusion on Mr Adkinsmay be confusion on Mr Adkins’’ part about what she had saidpart about what she had said,, but she was but she was constrained by the fact she could not give evidence herselfconstrained by the fact she could not give evidence herself. In those . In those circumstances we decided that the best cocircumstances we decided that the best course of action was to reurse of action was to recallcall Ms Ms BallantineBallantine to give evidence to give evidence so that she could clarify further her evidence so that she could clarify further her evidence about the terms of reference for comparator 4 and the claimant couldabout the terms of reference for comparator 4 and the claimant could ask ask further questionsfurther questions or challenge her furtheror challenge her further if the claimant/ Mr if the claimant/ Mr Adkins’ so Adkins’ so wanted.wanted. 1 133.. Ms Ms BallantineBallantine therefore gave evidence again. We then heard from Ms Fortetherefore gave evidence again. We then heard from Ms Forte and Mr Redrup. Mr Redrup’s evidence continued into day 5and Mr Redrup. Mr Redrup’s evidence continued into day 5. During the . During the course of Mr Redrup’s evidecourse of Mr Redrup’s evidence an issue arose as to whether the decision nce an issue arose as to whether the decision made at the safeguarding strategy meeting was a specific made at the safeguarding strategy meeting was a specific pleaded issue in pleaded issue in the case. Mr Adkins initially argued that it was there by implication but the case. Mr Adkins initially argued that it was there by implication but ultimately ultimately accepted that the claimant’s case would be confinedaccepted that the claimant’s case would be confined to what was in to what was in the List of Issues the List of Issues (as further particularised in the case management order (as further particularised in the case management order produced after the July hearing). produced after the July hearing). Mr Redrup completed his evidence and we Mr Redrup completed his evidence and we then heard from Ms Devonish and Ms James. then heard from Ms Devonish and Ms James. At the reconvened hearing we At the reconvened hearing we were given an updatewere given an updated file of witness statements and an updated hearing file d file of witness statements and an updated hearing file extending to 725 pages. To that extending to 725 pages. To that was added at [726] a letter from Ms Devonish was added at [726] a letter from Ms Devonish of 8 December 2021 and of 8 December 2021 and at [727 to 730]at [727 to 730] aa document about section document about section 5 strate5 strategy gy meetings. References in this Judgment in square brackets are references to meetings. References in this Judgment in square brackets are references to that updatethat updatedd hearing file. hearing file.[14]Two further dates were listed for Two further dates were listed for 30 and 31 January 2024. The parties 30 and 31 January 2024. The parties exchanged written closing submissions in advance and provided further oral exchanged written closing submissions in advance and provided further oral submissions on the morning of 30 January 2024. We submissions on the morning of 30 January 2024. We hoped to be able to give hoped to be able to give an oral judgment with reasons on the afternoon of 31 January 2024 but an oral judgment with reasons on the afternoon of 31 January 2024 but tribunal panel deliberations did not complete in time to allow us to do so. Our tribunal panel deliberations did not complete in time to allow us to do so. Our Case No: 1601026/2022 5 deliberations only concluded in the late afternoon of 31 January 2024. deliberations only concluded in the late afternoon of 31 January 2024. Judgment was therefore reserved to be Judgment was therefore reserved to be delivered in writing. delivered in writing. EJ Harfield EJ Harfield apologises for the delay in proapologises for the delay in providing this Reserved Judgment which was viding this Reserved Judgment which was caused by the pressure of other judicial wocaused by the pressure of other judicial work and some ill health. rk and some ill health.[15]We do not summarise in this Judgment the closing submissions made but We do not summarise in this Judgment the closing submissions made but instead incorporate particular points raised at the appropriate point when instead incorporate particular points raised at the appropriate point when making our findings below. We dmaking our findings below. We didid also take all written and oral submissions also take all written and oral submissions into account when making our deciinto account when making our decision.sion.[16]We would add that in his oral submissions Mr Adkins accused Ms We would add that in his oral submissions Mr Adkins accused Ms O’Callaghan of O’Callaghan of making disingenuous submissions. We do not agree that she making disingenuous submissions. We do not agree that she did. Ms O’Callaghan did. Ms O’Callaghan was performing her professional dutieswas performing her professional duties,, and we are and we are grateful for the level headgrateful for the level headedness Ms O’Callaghan displayed throughout these edness Ms O’Callaghan displayed throughout these proceedings. proceedings. The Issues to be decided The Issues to be decided[17]The List of Issues for us to decide as originally set out by EJ Webb and The List of Issues for us to decide as originally set out by EJ Webb and further particularised as set out in EJ further particularised as set out in EJ Harfield’s case management order is as Harfield’s case management order is as followsfollows (limited to liability matters)(limited to liability matters)::[1]Time limits Time limits 1.1 Were the complaints made within the time limit in section 123 of the Were the complaints made within the time limit in section 123 of the Equality Act 2010? The Tribunal will decide:Equality Act 2010? The Tribunal will decide:1.1.1 1.1.1 Was the claim made to the Was the claim made to the Tribunal within three months (plus Tribunal within three months (plus early conciliation extension) of the act to which the complaint early conciliation extension) of the act to which the complaint relates?relates?1.1.2 1.1.2 IIf not, was there conduct extending over a period?f not, was there conduct extending over a period? 1.1.1.1.3 3 If not, was the claim made to the Tribunal within three months If not, was the claim made to the Tribunal within three months (plus early concil(plus early conciliation extension) of the end of that period?iation extension) of the end of that period?1.1.4 1.1.4 If not, were the claims made within a further period that the If not, were the claims made within a further period that the Tribunal thinks is just and equitable? The Tribunal will decide:Tribunal thinks is just and equitable? The Tribunal will decide: 1.1.4.1 Why were the complaints not made to the Tribunal in 1.1.4.1 Why were the complaints not made to the Tribunal in time?time? 1.1.4.21.1.4.2 In any event, is it just and equitable in all the In any event, is it just and equitable in all the circumstances to extend time?circumstances to extend time?[2]Direct race discrimination (Equality Act 2010 section 13)Direct race discrimination (Equality Act 2010 section 13)2.1 The aspect of the Claimant’s race that is relevant is that she is Black The aspect of the Claimant’s race that is relevant is that she is Black British.British.2.2 Did the Respondent do the Did the Respondent do the following things:following things: Case No: 1601026/2022 6 2.2.1 Refer the Claimant to a safeguarding strategy meeting before an Refer the Claimant to a safeguarding strategy meeting before an internal investigation. In particular throughinternal investigation. In particular through::2.2.1.1 3R’s decision to refer the parental complaint to Mr Redrup (the 3R’s decision to refer the parental complaint to Mr Redrup (the claimant’s position being that 3R should have made a decision claimant’s position being that 3R should have made a decision that it was not a safeguarding matter following an internal that it was not a safeguarding matter following an internal investigation);investigation);2.2.1.2 Mr Redrup’s decision to take the referral to Ms DevonMr Redrup’s decision to take the referral to Ms Devonish (the ish (the claimant takes particular issue with the basis on which Mr claimant takes particular issue with the basis on which Mr Redrup presented it to Ms Devonish);Redrup presented it to Ms Devonish);2.2.1.3 Ms Devonish’s decision to refer it to a Part 5 meeting (on the Ms Devonish’s decision to refer it to a Part 5 meeting (on the basis ofbasis of her evaluation or response to the allegations that were her evaluation or response to the allegations that were before her in the parental complaint and any other information before her in the parental complaint and any other information she had been given)she had been given)2.3 Was that less favourable treatment?Was that less favourable treatment? The Tribunal will decide The Tribunal will decide whether the Claimant was treated worse than whether the Claimant was treated worse than someone else was treated. There must be no material difference someone else was treated. There must be no material difference between their circumstances and the Claimant’s between their circumstances and the Claimant’s The Claimant has been directed to provide further and better The Claimant has been directed to provide further and better particulars about the identify of the tparticulars about the identify of the three comparators. hree comparators. 12.4 If so was it because of her race?If so was it because of her race?2.5 Did the Respondent’s treatment amount to a detriment?Did the Respondent’s treatment amount to a detriment?[3]Harassment related to race (Equality Act 2010 section 26) Harassment related to race (Equality Act 2010 section 26)3.1 Did the RDid the Respondent espondent do the following things:do the following things:3.1.1 Pursue allegations of racism Pursue allegations of racism against the Cagainst the Claimantlaimant2;;3.1.2 Refer the CRefer the Claimantlaimant to a safeguarding strategy meeting before an to a safeguarding strategy meeting before an internal investigation;internal investigation; In particular through:In particular through:3.1.2.1 3R’s decision to refer the parental complaint to Mr Redrup (the 3R’s decision to refer the parental complaint to Mr Redrup (the claimant’s position being that 3R should have made a decision claimant’s position being that 3R should have made a decision that it was not a safeguarding matter following an internal that it was not a safeguarding matter following an internal investigation);investigation);3.1.2.2 Mr Redrup’s decision to take the referral to Ms DevonMr Redrup’s decision to take the referral to Ms Devonish (the ish (the claimant takes particular issue with the basis on which Mr claimant takes particular issue with the basis on which Mr Redrup presented it to Ms Devonish);Redrup presented it to Ms Devonish); 1 The Claimant did so, and further as set out above, the Claimant was given permission to also rely on a fourth comparator. 2 As set out above Mr Adkins stated that this allegation related to the letter of 24 November 2021 sent by the Chair of Governors Ms Forte. Case No: 1601026/2022 73.1.2.3 Ms Devonish’s decision to refer it to a Part 5 meeting (on the Ms Devonish’s decision to refer it to a Part 5 meeting (on the basis of her evaluation or response to the allegations that were basis of her evaluation or response to the allegations that were before her in the parebefore her in the parental complaint and any other information ntal complaint and any other information she had been given);she had been given);3.1.3 Fail to provide an opportunity forFail to provide an opportunity for the Claimantthe Claimant to address allegations to address allegations informally;informally;3.1.4 Fail to provide an opportunity to provide her response formally to the Fail to provide an opportunity to provide her response formally to the allegation before the allegation before the safeguarding meeting was concluded;safeguarding meeting was concluded;3.1.5 Pursue the allegation through the disciplinary process that concluded Pursue the allegation through the disciplinary process that concluded on 27 May 2022;on 27 May 2022;3.1.6 Fail to investigate the CFail to investigate the Claimantlaimant’s complaint of 24 January 2022 through ’s complaint of 24 January 2022 through the disciplinary process;the disciplinary process;3.1.7 Fail to refer the CFail to refer the Claimant to laimant to an occupational Health Assessmentan occupational Health Assessment in in January 2022. January 2022.3.2 If so, was that unwanted conduct?If so, was that unwanted conduct?3.3 Did it relate to the Claimant’s race?Did it relate to the Claimant’s race?3.4 Did the conduct have the purpose of violating the Claimant’s dignity or Did the conduct have the purpose of violating the Claimant’s dignity or creating an intimidating, hostile, degrading, creating an intimidating, hostile, degrading, humiliating or offensive humiliating or offensive environment for the Claimant?environment for the Claimant?3.5 If not, did it have that effect? The Tribunal will take into accountIf not, did it have that effect? The Tribunal will take into account the the Claimant’s perception, the other circumstances of the case and Claimant’s perception, the other circumstances of the case and whether it is reasonable for the conduct to have that effect.”whether it is reasonable for the conduct to have that effect.” The legal framework The legal framework Direct Direct racerace discriminationdiscrimination 18 18.. Under section 9 Equality Act race includes colour, Under section 9 Equality Act race includes colour, nationalitynationality, ethnic o, ethnic or r national origins. national origins. 19 19.. Direct discrimination is defined in section 13(1) Equality Act as followsDirect discrimination is defined in section 13(1) Equality Act as follows:: “A person(a) (A) discriminates against another(b) (B) if, because of a protected “A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.” characteristic, A treats B less favourably than A treats or would treat others.” 20 20.. The crucial question in a direct discrimination The crucial question in a direct discrimination complaint is why the claimant complaint is why the claimant received the less favourable treatment. The seminal case is received the less favourable treatment. The seminal case is NaNagarajan v garajan v London Regional Transport [200] 1 AC HL London Regional Transport [200] 1 AC HL where Lord Nicholls said:where Lord Nicholls said: ““… in every case it is … in every case it is necessary to inquire why the complainant received less necessary to inquire why the complainant received less favourable treatment. This is the crucial question. Was it on grounds of favourable treatment. This is the crucial question. Was it on grounds of race? Or was it for some other reason, for instance, because the complainant race? Or was it for some other reason, for instance, because the complainant was not so well qualified for the job? Save in obwas not so well qualified for the job? Save in obvious cases, answering the vious cases, answering the Case No: 1601026/2022 8 crucial question will call for some consideration of the mental processes of the crucial question will call for some consideration of the mental processes of the alleged discriminatoralleged discriminator…”…” 2 211. In . In Richmond PharmRichmond Pharmaacology v Dhaliwal [2009]cology v Dhaliwal [2009] IRLR IRLR 336336 Mr Justice Underhill Mr Justice Underhill referred to the above referred to the above and said:and said: ““It is also worth observing that, although establishing the reason why a It is also worth observing that, although establishing the reason why a respondent in a discrimination case acted in the way complained of typically respondent in a discrimination case acted in the way complained of typically involves an examination of the “mental processes”…oinvolves an examination of the “mental processes”…of the decisionf the decision--taker, that taker, that is not always so. In some cases, the “ground” of the action complained of is is not always so. In some cases, the “ground” of the action complained of is inherently racial. The best known example in the caseinherently racial. The best known example in the case--law, though in fact law, though in fact relating to sex discrimination, is the decision of the House of Lords in relating to sex discrimination, is the decision of the House of Lords in James v James v Eastleigh Borough Council [1990] 2AC 751Eastleigh Borough Council [1990] 2AC 751 …… In that case the criterion applied by the Council inherently discriminated between men and women, and no consideration of the thought processes of the decision-makers was necessary: the application of the inherently discriminatory criterion could without more be identified as "the reason why" the plaintiff had suffered the detriment of which she complained. It is only because in most cases the detriment complained of does not consist in the application of an overtly discriminatory criterion of that sort that the "reason" (or "grounds") for the act has to be sought by considering the respondent's motivation (not motive). It seems to us particularly important to bear that point in mind in harassment cases. Where the nature of the conduct complained of consists, for example, of overtly racial abuse the respondent can be found to be acting on racial grounds without troubling to consider his mental processes.” 22 22.. The concept of treatment being less favourable inherently suggests some The concept of treatment being less favourable inherently suggests some form of comparison and section 23(1) form of comparison and section 23(1) providesprovides:: “On a comparison of cases for the purposes of section 13, 14 or 19 there “On a comparison of cases for the purposes of section 13, 14 or 19 there must be no material difference between the must be no material difference between the circumstances relating to each circumstances relating to each case.”case.” 23. 23. The effect of section 23 is to ensure that any comparison made must be The effect of section 23 is to ensure that any comparison made must be between situations which are genuinely comparable. The case law, however, between situations which are genuinely comparable. The case law, however, makes it clear that it is not necessary for a claimant to have an makes it clear that it is not necessary for a claimant to have an actual actual comparator to succeed. The comparcomparator to succeed. The comparisonison can be with a hypothetical person. can be with a hypothetical person. That said the case law also identifies that given the real question is That said the case law also identifies that given the real question is usually usually ababout out the “reason why” the “reason why” the decision maker acted as he or she didthe decision maker acted as he or she did,, or whether or whether conduct is inherentconduct is inherently discriminatoryly discriminatory, and, and it is sometimesit is sometimes possible for the possible for the tribunal to make a finding as to the reason why a person acted as he or she tribunal to make a finding as to the reason why a person acted as he or she did without the need to concern itself with constructing a hypothetical did without the need to concern itself with constructing a hypothetical comparator. comparator. 2 244.. In order to satisfy the “because of” test, it is not necessary for the pIn order to satisfy the “because of” test, it is not necessary for the protected rotected characteristic to be the whole of the reason, or even the principal reason, for characteristic to be the whole of the reason, or even the principal reason, for the treatment. In the treatment. In Nagarajan Nagarajan Lord Nicholls also said:Lord Nicholls also said: ““Decisions are frequently reached for more than one reason. Discrimination Decisions are frequently reached for more than one reason. Discrimination may be on racial grounds even though it is not the sole ground for the may be on racial grounds even though it is not the sole ground for the decision. A variety of phrases, with different shades of meaning, have been decision. A variety of phrases, with different shades of meaning, have been used to explain how the legislatioused to explain how the legislation applies in such cases: discrimination n applies in such cases: discrimination requires that racial grounds were a cause, the activating cause, a substantial requires that racial grounds were a cause, the activating cause, a substantial Case No: 1601026/2022 9 and effective cause, a substantial reason, an important factor. No one phrase and effective cause, a substantial reason, an important factor. No one phrase is obviously preferable to all others…If racial grounds…hais obviously preferable to all others…If racial grounds…had a significant d a significant influence on the outcome, discrimination was made out.” influence on the outcome, discrimination was made out.” Harassment related to Harassment related to racerace 2 255.. Section 26 of the Equality Act defines harassment under the Act as follows:Section 26 of the Equality Act defines harassment under the Act as follows: (1)(1) A person (A) harasses another (B) if A person (A) harasses another (B) if –– (a)(a) A engages in A engages in unwanted conduct related to a relevant protected unwanted conduct related to a relevant protected characteristic andcharacteristic and (b)(b) the conduct has the purpose or effect of the conduct has the purpose or effect of –– (i)(i) violating B’s dignity, orviolating B’s dignity, or (ii)(ii) creating an intimidating, hostile, degrading, humiliating or offensive creating an intimidating, hostile, degrading, humiliating or offensive environment for B…environment for B… (4)(4) In decidIn deciding whether conduct has the effect referred to in subsection ing whether conduct has the effect referred to in subsection 1(b), each of the following must be taken into account 1(b), each of the following must be taken into account –– (a)(a) the perception of B;the perception of B; (b)(b) the circumstances of the case;the circumstances of the case; (c)(c) whether it is reasonable for the conduct to have that effect. whether it is reasonable for the conduct to have that effect. 2 266.. In In Richmond Pharmacology v DhaliwalRichmond Pharmacology v Dhaliwal [2009] IRLR [2009] IRLR 336336 thethe employment employment appeal tribunal [“EAT”]appeal tribunal [“EAT”] set out a threeset out a three--step test for establishing whether step test for establishing whether harassment has occurred:harassment has occurred:• was there unwanted conduct;was there unwanted conduct;• did it have the purpose or effect of violating a did it have the purpose or effect of violating a person’s dignity or person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive creating an intimidating, hostile, degrading, humiliating or offensive environment for them; andenvironment for them; and• was it related to a protected characteristic.was it related to a protected characteristic. 27. 27. It was also said that the tribunal must consider both whether the complainant It was also said that the tribunal must consider both whether the complainant considers themselves to have suffered the effect in question (the subjective considers themselves to have suffered the effect in question (the subjective question) and whether it was reasonable for the conduct to be regarded as question) and whether it was reasonable for the conduct to be regarded as having that effect (the objhaving that effect (the objective question). The tribunal must also take into ective question). The tribunal must also take into account all the other circumstances. The relevance of the subjective question account all the other circumstances. The relevance of the subjective question is that if the claimant does not perceive their dignity to have been violated, or is that if the claimant does not perceive their dignity to have been violated, or an adverse environment created, then the condan adverse environment created, then the conduct should not be found to uct should not be found to have that effect. The relevance of the objective question is that if it was not have that effect. The relevance of the objective question is that if it was not reasonable for the conduct to be regarded as violating the claimant’s dignity reasonable for the conduct to be regarded as violating the claimant’s dignity or creating an adverse environment for her, then it should not be foundor creating an adverse environment for her, then it should not be found to to have done so. have done so. 28 28.. In In Grant v HM Land Registry [Grant v HM Land Registry [2011] IRLR 7482011] IRLR 748 the court of appeal reiterated the court of appeal reiterated that when assessing the effect of a remark, the context in which it is given is that when assessing the effect of a remark, the context in which it is given is highly material. A tribunal should not cheapen the significance of the wordshighly material. A tribunal should not cheapen the significance of the words “intimidating, hostile, degrading, humiliating or offensive” as they are an “intimidating, hostile, degrading, humiliating or offensive” as they are an important control to prevent trivial acts causing minor upset being caught up important control to prevent trivial acts causing minor upset being caught up in the concept of harassment. The court of appeal also said “in the concept of harassment. The court of appeal also said “It is not importing It is not importing intent into the concintent into the concept of effect to say that intent will generally be relevant to ept of effect to say that intent will generally be relevant to assessing effect. It will also be relevant to deciding whether the response of assessing effect. It will also be relevant to deciding whether the response of the alleged victim is reasonable.” the alleged victim is reasonable.” Case No: 1601026/2022 10 2929..In In Betsi Cadwaladr University Health Board v Hughes [2014] UKEAT/0179/13 Betsi Cadwaladr University Health Board v Hughes [2014] UKEAT/0179/13 it was said: “it was said: “The word violating is a strong word. Offending against dignity; The word violating is a strong word. Offending against dignity; hurting it, is insufficient. “Violating” may be a word the strength of which is hurting it, is insufficient. “Violating” may be a word the strength of which is sometimes overlooked. The sasometimes overlooked. The same might be said of the words “intimidating” me might be said of the words “intimidating” etc. All look for effects which are serious and marked, and not those which etc. All look for effects which are serious and marked, and not those which are, though real, truly of lesser consequence.” are, though real, truly of lesser consequence.” 3 30.0. The phrase “related to” a protected characteristicThe phrase “related to” a protected characteristic in a harassment complaintin a harassment complaint is a different test from whether the conduct is “because of” a protected is a different test from whether the conduct is “because of” a protected characteristiccharacteristic in a direct discrimination complaintin a direct discrimination complaint. It is a broader, more easily . It is a broader, more easily satisfied test. It encompasses conduct associated with the protected satisfied test. It encompasses conduct associated with the protected charcharacteristic even if not caused by it; acteristic even if not caused by it; Equal Opportunities Commission v Equal Opportunities Commission v Secretary of State for Trade and Industry Secretary of State for Trade and Industry [[2007] ICR 12342007] ICR 1234. . In that caseIn that case the the following examples were accepted as being “associated” with the following examples were accepted as being “associated” with the complainant’s sex but not “caused by it” in tcomplainant’s sex but not “caused by it” in the sense of forming part of the he sense of forming part of the motivationmotivation::• A RAF NCO using offensive and obscene language A RAF NCO using offensive and obscene language in front of group of in front of group of male and female staff but was particularly offensive to the women;male and female staff but was particularly offensive to the women;• A claimant who is unfairly treated by her manager who was jealous of A claimant who is unfairly treated by her manager who was jealous of the claimant’s sexual relationship with a colleague; andthe claimant’s sexual relationship with a colleague; and• A manager barging into a female A manager barging into a female toilet butoilet but would equally barge into a t would equally barge into a male toilet. male toilet. 31. 31. “Related to” “Related to” does however have limits. The conduct complained about must does however have limits. The conduct complained about must relate to the protected characteristic which is a matter for the tribunal to relate to the protected characteristic which is a matter for the tribunal to determine based on all the facts as found. It was said indetermine based on all the facts as found. It was said in Tees Esk and Wear Tees Esk and Wear Valleys NHS Foundation Trust v Aslam and Heads UKEAT/0039/19Valleys NHS Foundation Trust v Aslam and Heads UKEAT/0039/19 the the “related to” test may be satisfied by looking at the motivation of the individuals “related to” test may be satisfied by looking at the motivation of the individuals concerned but it is not the necessary or only possible route. It was also said: concerned but it is not the necessary or only possible route. It was also said: “Nevertheless there must be still, in any given case, be some feature or “Nevertheless there must be still, in any given case, be some feature or features of features of the factual matrix identified by the Tribunal, which properly leads it the factual matrix identified by the Tribunal, which properly leads it to the conclusion that the conduct in question is related to the particular to the conclusion that the conduct in question is related to the particular characteristic in question, and in the manner alleged by the claimcharacteristic in question, and in the manner alleged by the claim… Section … Section 26 does not bite on conduct which26 does not bite on conduct which, though it may be unwanted and have the , though it may be unwanted and have the proscribed purpose or effect, is not properly found for some identifiable proscribed purpose or effect, is not properly found for some identifiable reason also to have been related to the characteristic relied upon, as alleged, reason also to have been related to the characteristic relied upon, as alleged, no matter how offensive or otherwise inappropriate the Tribunno matter how offensive or otherwise inappropriate the Tribunal may consider al may consider it to be.” it to be.” Burden of Proof under the Equality Act 2010Burden of Proof under the Equality Act 2010 32 32.. The Equality Act 2010 provides for a shifting burden of proof. Section 136 so The Equality Act 2010 provides for a shifting burden of proof. Section 136 so far as material provides:far as material provides: “(2) if there are facts from which the Court (which includes a Tribunal) could “(2) if there are facts from which the Court (which includes a Tribunal) could decide in the absence of any other explanation that a person (A) contravened decide in the absence of any other explanation that a person (A) contravened the provision concerned, the Court must hold that the contravention occurred. the provision concerned, the Court must hold that the contravention occurred. (3) But subsection ((3) But subsection (2) does not apply if A shows that A did not contravene the 2) does not apply if A shows that A did not contravene the provision.”provision.” Case No: 1601026/2022 11 33 33.. Consequently, it is for a claimant to Consequently, it is for a claimant to proveprove facts from which the tribunal cfacts from which the tribunal could ould infer (absent explanation from the respondent) that discrimination has taken infer (absent explanation from the respondent) that discrimination has taken place. If such facts haplace. If such facts have been made out to the tribunal’s satisfaction, applying ve been made out to the tribunal’s satisfaction, applying the balance of probabilities, the second stage is engaged. At the second the balance of probabilities, the second stage is engaged. At the second stage the burden shifts to the respondent to prove, again on the balance of stage the burden shifts to the respondent to prove, again on the balance of probabilities, that the treatment in question wasprobabilities, that the treatment in question was “in “in no sense whatsoever”no sense whatsoever” because of the prohibited reason / that the protected characteristic was not a because of the prohibited reason / that the protected characteristic was not a ground for the treatment in question. A tribunal would normally expected ground for the treatment in question. A tribunal would normally expected cogent evidence to discharge that burden of proof. cogent evidence to discharge that burden of proof. 34 34.. In In Hewage v GrampianHewage v Grampian Health Board [2012] IRLR 870 Health Board [2012] IRLR 870 the supreme court the supreme court approved guidance previously given by the court of appeal on how the burden approved guidance previously given by the court of appeal on how the burden of proof provisions should apply. That guidance appears in of proof provisions should apply. That guidance appears in Igen Limited v Igen Limited v Wong [2005] ICR 931Wong [2005] ICR 931 as supplemented in as supplemented in Madarassy v Nomura International Madarassy v Nomura International Plc [2007] ICR 867.Plc [2007] ICR 867. Here it is important to note that aHere it is important to note that although the concept of lthough the concept of the shifting burden of proof involves the shifting burden of proof involves thatthat twotwo--stage process, thstage process, thee analysis analysis should only be conducted once the tribunal has heshould only be conducted once the tribunal has heard all the evidence. ard all the evidence. Further, as to what is required to discharge the burden at the first stage; it Further, as to what is required to discharge the burden at the first stage; it must be something more than a difference in protected characteristic and a must be something more than a difference in protected characteristic and a difference in treatment. difference in treatment. 35 35.. It is not necessarily an error of law for a tribIt is not necessarily an error of law for a tribunal to effectively assume the unal to effectively assume the burden has shifted and look to the respondent to provide an explanation for burden has shifted and look to the respondent to provide an explanation for the treatment in question. It was said in the treatment in question. It was said in HewageHewage that the burden of proof that the burden of proof provision may have nothing to offer where the tribunal is in a position to provision may have nothing to offer where the tribunal is in a position to make make positive findings on the evidence one way or another. But the burden of proof positive findings on the evidence one way or another. But the burden of proof provisions do require careful attention where there is room for doubt as to the provisions do require careful attention where there is room for doubt as to the facts necessary to establish discrimination; a point recently emphasised by facts necessary to establish discrimination; a point recently emphasised by the employment apthe employment appeal tribunalpeal tribunal (with its particular words of caution in (with its particular words of caution in paragraph 41 and thereafter)paragraph 41 and thereafter) in in Field v Steve Pye &Co [2022] EAT 68.Field v Steve Pye &Co [2022] EAT 68. 36. 36. InIn RRaj v Capita Business Services Ltd [2019aj v Capita Business Services Ltd [2019] UKEAT 74 19 2006] UKEAT 74 19 2006 the the employment appeal tribunal confirmed that the burden of proof provisions in a employment appeal tribunal confirmed that the burden of proof provisions in a harassment claim mean that itharassment claim mean that it isis for the claimant to establish facts such that, for the claimant to establish facts such that, absent anabsent any other explanation for it, the tribunal could conclude that the y other explanation for it, the tribunal could conclude that the conduct was relateconduct was related to the protected characteristic. The burden then shifts to d to the protected characteristic. The burden then shifts to the respondent to show that it was not in fact so related. the respondent to show that it was not in fact so related. It was also said: “It was also said: “I am doubtful that establishing unwanted conduct that had a prohibited effect could ever of itself give rise to a prima facie case that the conduct was related to a protected characteristic and in any event, I am quite satisfied that it did not do so in these circumstances.” The time limit for disability discrimination complaints The time limit for disability discrimination complaints.. 3 377.. The initial time limit for The initial time limit for complaints under the Equality Act 2010 is 3 months complaints under the Equality Act 2010 is 3 months starting with the date of the act of discrimination complained about. The effect starting with the date of the act of discrimination complained about. The effect of the early conciliation procedure is that, if the notification to ACAS is made of the early conciliation procedure is that, if the notification to ACAS is made within the initial time limit period, time within the initial time limit period, time is extended, at least, by the period of is extended, at least, by the period of conciliation.conciliation. 3 388.. Under Section 123(3) of the Equality Act conduct extending over a period is to Under Section 123(3) of the Equality Act conduct extending over a period is to be treated as done at the end of the period. A continuing course of conduct be treated as done at the end of the period. A continuing course of conduct might amount to an act extending over a pemight amount to an act extending over a period; riod; Hendricks v Commissioner of Hendricks v Commissioner of Police of the Metropolis Police of the Metropolis [2003] IRLR 96.[2003] IRLR 96. Case No: 1601026/2022 12 3 399.. Under Section 123(3) a failure to do something is to be treated as occurring Under Section 123(3) a failure to do something is to be treated as occurring when the person in question decided on it. Under section 123(4) in the when the person in question decided on it. Under section 123(4) in the absence of evidence to the contrary, a person (P) is to be taken to decide on absence of evidence to the contrary, a person (P) is to be taken to decide on a failure to do something whena failure to do something when either P does an act inconsistent with doing it, either P does an act inconsistent with doing it, or if P does not do an inconsistent act, on the expiry of the period in which P or if P does not do an inconsistent act, on the expiry of the period in which P might reasonably have been expected to do it. might reasonably have been expected to do it. 40 40.. A tribunal may consider a complaint out of time if it considers it just and A tribunal may consider a complaint out of time if it considers it just and equitable to do so in the relevant circumstances. equitable to do so in the relevant circumstances. Findings of fact Findings of fact Introduction Introduction 41. 41. We do not need to make findings on every point put forward or disputed by We do not need to make findings on every point put forward or disputed by the parties; only those necessary to decide the Issues in the case. the parties; only those necessary to decide the Issues in the case. Where Where there is a dispute between the parties we make our decision on the balance of there is a dispute between the parties we make our decision on the balance of probabilities. probabilities. 42. 42. The The cclaimant started working laimant started working at Whitmore High Schoolat Whitmore High School in September 2002in September 2002. . She is a history teacherShe is a history teacher. . 1R is the 1R is the governing body of the school. 2R is the governing body of the school. 2R is the local authority. 3R local authority. 3R at the relevant time was Head of School and had been in at the relevant time was Head of School and had been in post since September 2019.post since September 2019. The claimaThe claimant at the time was the only black nt at the time was the only black member of teaching staff. member of teaching staff. 3R told us that the proportion of 3R told us that the proportion of BAME pupils was BAME pupils was around less than 10%. around less than 10%. The parental complaint of 11 October 2021 The parental complaint of 11 October 2021 43. 43. at 12:25 on 11 October 2021 the mother of Child A sent an email at 12:25 on 11 October 2021 the mother of Child A sent an email marked marked with with high importance and with the subject “URGENT high importance and with the subject “URGENT –– safeguarding issues” to Mr safeguarding issues” to Mr KennedyKennedy (Assistant Headteacher)(Assistant Headteacher), Mr Browne, Mr Browne (Executive Headteacher)(Executive Headteacher), and , and 3R [163]. The mother of Child A 3R [163]. The mother of Child A was a school governor.was a school governor. The father of Child A The father of Child A was a police officer.was a police officer. The body of the emailThe body of the email [76[76--77]77] said:said: ““Please see below a letter from my husband. Please see below a letter from my husband. This is of huge concern for us This is of huge concern for us both and welcome your immediate attention. both and welcome your immediate attention. Many thanks,Many thanks, I would like to alert you to some very disturbing behaviour that has been I would like to alert you to some very disturbing behaviour that has been brought to my attention by my son brought to my attention by my son [[ ] has] has mentioned that on the morning of Friday 8th October 2021 he had mentioned that on the morning of Friday 8th October 2021 he had form class as normal with form class as normal with MMiss iss BByfield. During form class she engaged theyfield. During form class she engaged the whole class in an open discussion, and numerous topics were given her whole class in an open discussion, and numerous topics were given her attention. I am all for this type of interaction and would even encourage it, so attention. I am all for this type of interaction and would even encourage it, so our children learn of current affairs and other persons points of view. our children learn of current affairs and other persons points of view. However, it must be remembered tHowever, it must be remembered that the year group is only 13/ 14 years of hat the year group is only 13/ 14 years of ageage and so very easily influenced especially by a figure of authority, namely a and so very easily influenced especially by a figure of authority, namely a teacher.teacher. Case No: 1601026/2022 13 It is with sadness that I inform you of her total lack of professionalism within It is with sadness that I inform you of her total lack of professionalism within this setting. I feel outraged at what I have been informed by my child! The first this setting. I feel outraged at what I have been informed by my child! The first matter I would raise is the discussion around the Sarah matter I would raise is the discussion around the Sarah EEverard murder,verard murder, which I am sure you awhich I am sure you are re [[awareaware]] was a horrendous crime committed by a was a horrendous crime committed by a serving police officer. Miss serving police officer. Miss BByfield has stated to the class yfield has stated to the class ““I do not trust the I do not trust the police. No one should trust them, don't get into the back of their car as they police. No one should trust them, don't get into the back of their car as they are rapistsare rapists”” She went on to tell of an experiShe went on to tell of an experience she has had where she did find herself in ence she has had where she did find herself in the back of a police car, due to her brother saying to a police officerthe back of a police car, due to her brother saying to a police officer “C“Can you an you smell the bacon?smell the bacon?” ” I'm led to believe this was said in a slightly jovial manner. I I'm led to believe this was said in a slightly jovial manner. I am proud to say that myam proud to say that my [[ ] ] said to her that his father is a police officer and said to her that his father is a police officer and she could trust him and his team. This was dismissed and not explored in any she could trust him and his team. This was dismissed and not explored in any way. I am a serving Detective Sergeant of 21 years who in the last fortnight way. I am a serving Detective Sergeant of 21 years who in the last fortnight has taken a rape case to court featuring 3 victimshas taken a rape case to court featuring 3 victims and 11 counts of rape. and 11 counts of rape. AA guilty verdict was returned, and he awaits sentenceguilty verdict was returned, and he awaits sentence.. I hI heead a team of seven ad a team of seven detectives whose sole purpose is to investigate this serious offencedetectives whose sole purpose is to investigate this serious offence. . I am part I am part of the solution to that despicable officerof the solution to that despicable officer’’s actions.s actions. TTo tell 13/ 14 o tell 13/ 14 year olds not to trust the police is a serious misjudgyear olds not to trust the police is a serious misjudgeement, and a ment, and a safeguarding issue. How many of your pupils over this weekend could safeguarding issue. How many of your pupils over this weekend could possibly have an interaction with police for numerous reasons. They may be possibly have an interaction with police for numerous reasons. They may be involved in crimeinvolved in crime or ASBor ASB, but what about the o, but what about the ones involved in CSnes involved in CSEE or are or are victims of crime who need assistance. I could go on, but I'm sure you realise victims of crime who need assistance. I could go on, but I'm sure you realise how misjudged the comments have been.how misjudged the comments have been. I wish this was the end, but racism was discussed and apparently I wish this was the end, but racism was discussed and apparently MMiss iss BByfield yfield states it's OK for her to use the word states it's OK for her to use the word niggernigger due to her race. I leave that there due to her race. I leave that there for you to get your own thoughts around in the present climate, and the for you to get your own thoughts around in the present climate, and the challenges faced by our communities around race relations. However I know challenges faced by our communities around race relations. However I know one of one of [[ ] ] friends whfriends who has a fragile mindset about minority groups. I o has a fragile mindset about minority groups. I wonder how he takes on the use of this word.wonder how he takes on the use of this word. [[ ] h] has also highlighted comments made earlier in the week during a as also highlighted comments made earlier in the week during a different conversation with the class. The Ldifferent conversation with the class. The LBGBGTQTQ++ community was also community was also discussed. Miss discussed. Miss BByfieldyfield stated that there are only two genders. If this was stated that there are only two genders. If this was done sensitively then no problem here, bearing in mind her audience. She done sensitively then no problem here, bearing in mind her audience. She has then gone on to discuss the queers and the fact that she hates the has then gone on to discuss the queers and the fact that she hates the pretend ones with the silly put on voices. She pretend ones with the silly put on voices. She hhas then as then highlighted to the form highlighted to the form class an individual pupilclass an individual pupil whowho she stated she hates because of his put on silly she stated she hates because of his put on silly voice. I am sure you arevoice. I am sure you are asas shocked at this behaviour as I am. What if there shocked at this behaviour as I am. What if there isis a pupil in a pupil in tthis form class who is struggling with his or her sexuality whhis form class who is struggling with his or her sexuality who o hashas now selfnow self--harmed this weekend due to her ill advised comments.harmed this weekend due to her ill advised comments. Sensitive matters do need to be discussed by everyone in our community, but Sensitive matters do need to be discussed by everyone in our community, but in a sensitive way which leads to understanding especially with our children. in a sensitive way which leads to understanding especially with our children. Miss Miss BByfield has bypassed a lot of understanding and has had no sensitivity yfield has bypassed a lot of understanding and has had no sensitivity around her audience when saround her audience when she is expressing her own views while he is expressing her own views while representingrepresenting Whitmore high school and its values.Whitmore high school and its values. ThisThis needs addressing and is no trivial matter. However I would be needs addressing and is no trivial matter. However I would be concerned ofconcerned of [[ ]] involvement as I do not wish him to lose friends due to involvement as I do not wish him to lose friends due to us informing you of this mus informing you of this matter. However again I am very proud thatatter. However again I am very proud that [[ ]] is is Case No: 1601026/2022 14 as as outraged about this as I am. We do need people likeoutraged about this as I am. We do need people like [[ ]] to stand up to stand up over such actions. over such actions. Saying thatSaying that [[ ]] would like it kept confidential of his would like it kept confidential of his involvement in this complaint.involvement in this complaint. I would welcome contact from you in regards to this matter and your own I would welcome contact from you in regards to this matter and your own investigation. Furtherinvestigation. Further,, ddoo certain referrals now need to be made? I realise this certain referrals now need to be made? I realise this possibly places you in a difficult position in regards to taking action. possibly places you in a difficult position in regards to taking action. I am contactable on...I am contactable on...”” 44. 44. To be clear the To be clear the cclaimantlaimant vehementlyvehemently denies this version of events as put denies this version of events as put forward by Child A and his parents. forward by Child A and his parents. She categorically denies saying that it She categorically denies saying that it was ok for her to use the N word and was ok for her to use the N word and has given evidence as to how utterly has given evidence as to how utterly offensive she finds the word offensive she finds the word and her experience of and her experience of being on the recbeing on the receiving end eiving end of racial abuse that has included use of this word. of racial abuse that has included use of this word. The The cclaimant’slaimant’s widerwider versionversion of the matters contained in the parental complaintof the matters contained in the parental complaint is summarised is summarised below as part of the below as part of the subsequent subsequent disciplinary investigation. disciplinary investigation. But the parental But the parental complaint at [76complaint at [76--77] is what 77] is what the respondents were initially dealing with.the respondents were initially dealing with. At At 12:33 Mr Kennedy replied to the parent to acknowledge the email12:33 Mr Kennedy replied to the parent to acknowledge the email. He . He said it said it would be dealt with in the strictest confidence, and he would be in contact at would be dealt with in the strictest confidence, and he would be in contact at the enthe end of the school day [81].d of the school day [81]. Response to the parental complaint on 11 October 2021 Response to the parental complaint on 11 October 2021 45. 45. It is difficult to be certain as to the exact sequence of events on 11 October It is difficult to be certain as to the exact sequence of events on 11 October 2021 in terms of 2021 in terms of who spoke to whom when and in what order. For example, who spoke to whom when and in what order. For example, 3R says that he 3R says that he spoke to Ms spoke to Ms BallantineBallantine (Principal HR Business Partner for (Principal HR Business Partner for 2R)2R) before he asked the claimant to come and see him. However, Ms before he asked the claimant to come and see him. However, Ms BallantineBallantine says she was on annual leave that day and did not speak to 3R says she was on annual leave that day and did not speak to 3R until until about 2:30pmabout 2:30pm.. ButBut we know that 3R’s PA had already emwe know that 3R’s PA had already emailed the ailed the claimant at 13:54. claimant at 13:54. By way of another example, Ms Forte (Chair of Governors) By way of another example, Ms Forte (Chair of Governors) said that the mother of Child A had telephoned said that the mother of Child A had telephoned Ms ForteMs Forte before lunchtime before lunchtime sayingsaying sheshe had sent the emailhad sent the email. . Ms Forte said she had then phoned 3R who Ms Forte said she had then phoned 3R who had not yet picked up the email. Whereas 3R says he phoned Ms Forte had not yet picked up the email. Whereas 3R says he phoned Ms Forte following advice from Ms following advice from Ms BallantineBallantine (albeit (albeit we accept that it is also possible we accept that it is also possible there was more than one conversationthere was more than one conversation between 3R and Ms Fortebetween 3R and Ms Forte). ). We doWe do not not consider that any witnesses were seeking to mislead us as to the sequence of consider that any witnesses were seeking to mislead us as to the sequence of eventeventss. We consider . We consider any lack of precision is down to the passage of time any lack of precision is down to the passage of time since October 2021since October 2021.. WWee alsoalso acknowledge it can be particularly hard to acknowledge it can be particularly hard to remember the exact sequence ofremember the exact sequence of events where there have been multiple events where there have been multiple discussions discussions with different people with different people about theabout the samesame matter over a period of matter over a period of days. days. 46. 46. What is known is that at 13:54 3R’s PA emailed the claimant asking her to What is known is that at 13:54 3R’s PA emailed the claimant asking her to see 3see 3RR after school that day [79]after school that day [79]. The claimant replied straight away saying. The claimant replied straight away saying:: “Dare I ask why? Would like to have at least some idea what it’s about!”.“Dare I ask why? Would like to have at least some idea what it’s about!”. 3R’s3R’s PA, responded at 13:58 to sayPA, responded at 13:58 to say:: “It is regarding an email he has received from “It is regarding an email he has received from a parent.”a parent.” We find that this wording must have originated from 3RWe find that this wording must have originated from 3R. . 47. 47. At 14:13 the At 14:13 the cclaimant asked to be forwarded the email from the parent as it laimant asked to be forwarded the email from the parent as it mentioned her. mentioned her. There was then no immediate response and at 14:41 the There was then no immediate response and at 14:41 the claimant [78] claimant [78] emailemaileded Ms Ms 3R’s PA3R’s PA again to say:again to say: ““Just to confirm I won’t be Just to confirm I won’t be seeing Innes today or attending any meeting withouseeing Innes today or attending any meeting without an agenda. At the very t an agenda. At the very Case No: 1601026/2022 15 least I should be able to see the e least I should be able to see the e--mail. I am assuming it is not good news, as mail. I am assuming it is not good news, as I cannot see I cannot see why that would require myself and Innes to meet. If you could why that would require myself and Innes to meet. If you could inform Innes of my decision, and rationale I’d appreciate it. I’m happy to inform Innes of my decision, and rationale I’d appreciate it. I’m happy to meet meet once I have a full explanation as to what the meeting entailsonce I have a full explanation as to what the meeting entails.”.” 4 488.. 3R 3R says that after he read the parental complaint (which had been says that after he read the parental complaint (which had been acknowledged already by Mr Kennedy), acknowledged already by Mr Kennedy), he decided that he needed to seek he decided that he needed to seek advice, particularly as the email was headed “Urgent safeguarding issue.” He advice, particularly as the email was headed “Urgent safeguarding issue.” He says that he contacted Ms Ballsays that he contacted Ms Ballaantine who advintine who advised him to speak with the Local sed him to speak with the Local Authority DesignateAuthority Designated Officerd Officer (“LADO”)(“LADO”), and that he then telephoned Mr , and that he then telephoned Mr RedrupRedrup. 3R. 3R says that following policy he also says that following policy he also informed Ms Forte by informed Ms Forte by telephone. He says that following Ms Ballantine’s advice he telephone. He says that following Ms Ballantine’s advice he also asked his PA also asked his PA to contact the claimant to request a meeting. Albeit, as already stated, that to contact the claimant to request a meeting. Albeit, as already stated, that timeline does not match the evidence of Ms Balltimeline does not match the evidence of Ms Ballaantine or the timing of the ntine or the timing of the emaemail to the claimant. il to the claimant. 3R 3R says he did not want to deviate from the advice says he did not want to deviate from the advice received from Mr Redrup or Ms Ballantine. He says the purpose of the received from Mr Redrup or Ms Ballantine. He says the purpose of the requested meetingrequested meeting with the claimant on the afternoon of 11 Octoberwith the claimant on the afternoon of 11 October was to was to tell the claimant a complaint had been madtell the claimant a complaint had been made, and to ask whether she was e, and to ask whether she was aware of matters that could have led to a complaint. He says aware of matters that could have led to a complaint. He says he would not he would not have have disclosed details of the complaintdisclosed details of the complaint. 3R. 3R says the advice he received was says the advice he received was that he was unable to share the details of the allegationthat he was unable to share the details of the allegations with the claimant. s with the claimant. 4 499.. Ms Ballantine Ms Ballantine says she was on annual leave and had a missed call from says she was on annual leave and had a missed call from 3R 3R that she returned at approximately 2:30pm. She says that 3R outlinthat she returned at approximately 2:30pm. She says that 3R outlined the ed the details of the parental complaindetails of the parental complaint t and and 3R also told her the parents wished for 3R also told her the parents wished for the identity of the child to remain confidentialthe identity of the child to remain confidential. She says she felt some of the . She says she felt some of the comments had the potential to cause emotional harm to pupils, specifically comments had the potential to cause emotional harm to pupils, specifically the comments abothe comments about the gay pupil and advising pupils not to trust the police. ut the gay pupil and advising pupils not to trust the police. She said that for this reasonShe said that for this reason,, and erring on the side of cautionand erring on the side of caution,, she felt it could she felt it could potentially be a safeguarding matter and suggested that 3R contact Mr potentially be a safeguarding matter and suggested that 3R contact Mr Redrup who had more experience in the areaRedrup who had more experience in the area. . We accept her evidence in We accept her evidence in that regard. that regard. She says that her adviShe says that her advicce was based on Welsh Government e was based on Welsh Government Guidance and woGuidance and wouuld be tld be thhe pre process she would follow in any potential child ocess she would follow in any potential child protection case. She says she also advised 3R to notify protection case. She says she also advised 3R to notify Ms Forte Ms Forte that a that a complaint had been received and that it was being referred to Mr Redrupcomplaint had been received and that it was being referred to Mr Redrup,, becausebecause this was the procedure in this was the procedure in the the sschool’s disciplinary policy. chool’s disciplinary policy. In In thethe subsequentsubsequent grievance investigation in December 2022, Ms Ballantine said grievance investigation in December 2022, Ms Ballantine said thatthat what what information could be shared with the claimant would dependent on information could be shared with the claimant would dependent on the advice provided by Mr Redrup and 3R’s decision following that advice.the advice provided by Mr Redrup and 3R’s decision following that advice. She said thatShe said that if Mr Redrup raised concerns that amounted to a if Mr Redrup raised concerns that amounted to a recommendation that the matter progress to recommendation that the matter progress to ssafeguarding then the nature of afeguarding then the nature of the complaint could not be sthe complaint could not be shhared with the ared with the cclaimantlaimant,, and that theand that the purpurpose of a pose of a meeting with the meeting with the cclaimant would have been to notify the claimant of a parental laimant would have been to notify the claimant of a parental complaint but not to discuss the details. complaint but not to discuss the details. 50. 50. 3R says that 3R says that after speaking with Ms Ballantine he telephoned Mr Redrup after speaking with Ms Ballantine he telephoned Mr Redrup and and subsequently forwarded on the parental comsubsequently forwarded on the parental complaint at 16:02 that afternoon. plaint at 16:02 that afternoon. The email is at [80] where 3R saysThe email is at [80] where 3R says:: ““Hi Jason, Here is the parent complaintHi Jason, Here is the parent complaint. . Staff and pupil details coming now Innes.” Staff and pupil details coming now Innes.” We do not have whatever We do not have whatever staff and staff and pupil details were then separately sent. pupil details were then separately sent. 51. 51. Mr Redrup Mr Redrup is a Safeguarding Officer for Educationis a Safeguarding Officer for Education in the Learning and Skills in the Learning and Skills Directorate,Directorate, employed by 2R.employed by 2R. He is not the LADO.He is not the LADO. He had been in post since He had been in post since Case No: 1601026/2022 16 May 2020, having previously had a career in May 2020, having previously had a career in the police service.the police service. Part of his Part of his role role is to be a safeguarding link for schools in the Vale of Glamorgan.is to be a safeguarding link for schools in the Vale of Glamorgan. In his In his statement statement Mr RedrupMr Redrup records receiving the email from 3R but does not records receiving the email from 3R but does not mention a telephone discussion with 3R on the afternoon of 11 October.mention a telephone discussion with 3R on the afternoon of 11 October. In hiIn his s earlier statement earlier statement provided as part of the grievance process Mr Redrupprovided as part of the grievance process Mr Redrup did did confirm he had spoken to 3R that afternoon [699]confirm he had spoken to 3R that afternoon [699], that 3R had told him about , that 3R had told him about the complaint, and he had asked for a copy to be forwarded on to him.the complaint, and he had asked for a copy to be forwarded on to him. 52. 52. Mr Redrup saMr Redrup saidid he sawhe saw the the parental complaintparental complaint as potentially mas potentially meeting eeting safeguarding referral criteriasafeguarding referral criteria because the allegationsbecause the allegations in the complaintin the complaint centred centred aroundaround potentialpotential racism, gender denial/ homoracism, gender denial/ homophobia/ moral views on mistrust phobia/ moral views on mistrust in law and order. He sain law and order. He said such matters could id such matters could potentiallypotentially call into question the call into question the claimant’s suitably to work with childrenclaimant’s suitably to work with children, as , as appliesapplies under Section 5 of the under Section 5 of the Wales Safeguarding Wales Safeguarding Procedure.Procedure. Mr Redrup said Mr Redrup said it was not for him to it was not for him to investigate the alinvestigate the allegations as the approach was to focus on legations as the approach was to focus on the voice of the voice of the the child and whatchild and what the child was allegingthe child was alleging. . Mr RedrupMr Redrup said said in evidence in evidence how he how he assessed the parental complaintassessed the parental complaint waswas therefore not about the claimant’s racetherefore not about the claimant’s race. . He said He said the allegation in thethe allegation in the parentalparental complaintcomplaint,, as he saw itas he saw it,, was not that the was not that the claimant was racistclaimant was racist,, but was that racism was discussed and apparently the but was that racism was discussed and apparently the claimant had alleged said it was ok for her to use the N word due to her raceclaimant had alleged said it was ok for her to use the N word due to her race and with concerns then raised about the potential implications of thatand with concerns then raised about the potential implications of that. . Mr Mr Redrup saidRedrup said that ithat it was not a matter for him to express in work a personal t was not a matter for him to express in work a personal opinion about whether, for example, a black person is allowed to use then N opinion about whether, for example, a black person is allowed to use then N word or not and that word or not and that he was looking athe was looking at the allegationthe allegation from the perspective of from the perspective of the child, and the alleged contextthe child, and the alleged context in which it was said to be used in that it in which it was said to be used in that it could create racicould create racism. Mr Redrup also said that if it was alleged that any sm. Mr Redrup also said that if it was alleged that any teacher had said not to trust the police, teacher had said not to trust the police, not to get in the back of their car, and not to get in the back of their car, and that they were all rapists, he would have considered that they were all rapists, he would have considered makmaking a referral under ing a referral under Part 5.Part 5. Mr Redrup said Mr Redrup said after he received after he received the email,the email, he contacted Ms Devonish he contacted Ms Devonish to ascertain to ascertain her preliminary view of the matter reported and he subsequently her preliminary view of the matter reported and he subsequently forwarded the complaint to forwarded the complaint to Ms DevonishMs Devonish. . He did so at 16:19 that afternoonHe did so at 16:19 that afternoon.. 53. 53. Ms DevonishMs Devonish is a qualified social worker. She is employed by 2R as Adult is a qualified social worker. She is employed by 2R as Adult Safeguarding Manager Safeguarding Manager in the Social Services Directorate and is Designated in the Social Services Directorate and is Designated OfficeOfficerr for Safeguardingfor Safeguarding (“DOS”)(“DOS”) fulfilling duties delefulfilling duties delegated by the Lgated by the LADO, ADO, Ms Ms James. James. Ms Devonish has been in this post since January 2020. Ms Devonish has been in this post since January 2020. Ms Ms Devonish’s role Devonish’s role is to respond to reports or referrals in respect of allegations is to respond to reports or referrals in respect of allegations against practitioners/those in positions of trust and to make a decision if they against practitioners/those in positions of trust and to make a decision if they meet the criteria to progress to a strmeet the criteria to progress to a strategy ategy discussion with the police and other discussion with the police and other relevant agencies. Ms Devonish confirmrelevant agencies. Ms Devonish confirmeded she was contacted by Mr Redrup she was contacted by Mr Redrup on the afternoon of the on the afternoon of the 11 October and that he subsequently forwarded on the 11 October and that he subsequently forwarded on the emailemail.. 5 544.. The father of Child A was known to Mr RedThe father of Child A was known to Mr Redruprup professionallyprofessionally becausebecause when when Mr Redrup had been a Detective Chief Inspector in the police service, the Mr Redrup had been a Detective Chief Inspector in the police service, the father had been one of his team leaders for a short period of time. Mr Redrup father had been one of his team leaders for a short period of time. Mr Redrup raised this with Ms Devonish who did not have concerns about raised this with Ms Devonish who did not have concerns about a a conflictconflict of of interestinterest.. We accept Mr Redrup’s evidence in this regard. We accept Mr Redrup’s evidence in this regard. 55. 55. Ms Devonish’s evidence Ms Devonish’s evidence waswas that the elements in the that the elements in the parental parental complaint that complaint that concerned her wereconcerned her were: the allegation that the claimant had said she did not trust : the allegation that the claimant had said she did not trust the police, no one should trust them, not to get into the back of their car as the police, no one should trust them, not to get into the back of their car as they are rapists; they are rapists; the allegation the claimant had said it was ok for her to use the allegation the claimant had said it was ok for her to use Case No: 1601026/2022 17 the N word due to her race the N word due to her race; that th; that the claimant had allegedly discussed the e claimant had allegedly discussed the queers and that she hated the pretend one with silly put queers and that she hated the pretend one with silly put on voices and had on voices and had highlighted an individual pupil in this regard. highlighted an individual pupil in this regard. Ms DevonishMs Devonish said said she she considered the allegations, if true, had the potential to cause emotionalconsidered the allegations, if true, had the potential to cause emotional harm harm to the children the claimant was teachingto the children the claimant was teaching,, and and that if the claimant was that if the claimant was expressing such views she may not be suitable to work in the role of a expressing such views she may not be suitable to work in the role of a teacher. teacher. Ms DevonishMs Devonish sasaidid she was aware the children were 13/14 years old she was aware the children were 13/14 years old and was concerned they may not have the maturity to understand the and was concerned they may not have the maturity to understand the implications of using the N word andimplications of using the N word and the risk that a young person could go out the risk that a young person could go out in public and use the word with repercussions for themselves in public and use the word with repercussions for themselves or or anotheranother. She . She sasaidid that if the allegations were true the claimant may have been ridiculing the that if the allegations were true the claimant may have been ridiculing the policepolice,, and children may not potentially trust the police if they were in a and children may not potentially trust the police if they were in a situation where they needed to. situation where they needed to. Ms DevonishMs Devonish said said there was a concern that if there was a concern that if a chia child in the class was struggling with their sexuality then the alleged viewld in the class was struggling with their sexuality then the alleged viewss expressed may have had an impact on them. expressed may have had an impact on them. Ms DevonishMs Devonish sasaidid she therefore she therefore considered that the allegations as a whole, ifconsidered that the allegations as a whole, if proven, may deem the claimant proven, may deem the claimant unsuitable to work with childrenunsuitable to work with children. She s. She saidaid that she therefore proceeded with that she therefore proceeded with engaging Section 5 of the Wales Safeguarding Proceduresengaging Section 5 of the Wales Safeguarding Procedures.. 56. 56. Ms Devonish saMs Devonish saidid that once she had determined to progress through the that once she had determined to progress through the section 5 procedsection 5 procedures, her next step was to have a strategy discussion with ures, her next step was to have a strategy discussion with the police to share information and to allow the police to consider whether the police to share information and to allow the police to consider whether they wthey wouldould take any actiontake any action. . In the statement she provided in the grievance In the statement she provided in the grievance process [696] Ms Devonish said process [696] Ms Devonish said she had a discussion with South Wales she had a discussion with South Wales Police before deciding the matter would proceed to a Police before deciding the matter would proceed to a pprofessional rofessional sstrategy trategy mmeetingeeting.. On the afternoon of 12 October, Mr Redrup emailed Ms Devonish On the afternoon of 12 October, Mr Redrup emailed Ms Devonish [85] saying[85] saying:: ““have you managed to make contact with Police/school over thave you managed to make contact with Police/school over the he allegation we discussed allegation we discussed yesterdayyesterday…” which supports the evidence that Ms …” which supports the evidence that Ms Devonish and Mr Redrup did have a discussion on the 11 October and that Devonish and Mr Redrup did have a discussion on the 11 October and that Ms Devonish Ms Devonish was going to have an initial conversation with the police. was going to have an initial conversation with the police. 57. 57. 3R said in evidence it was his practice to follow s3R said in evidence it was his practice to follow subject matter expertubject matter expert adviceadvice. . He said the advice he was generally given was that he was not allowed to He said the advice he was generally given was that he was not allowed to give extra details before a part 5 meegive extra details before a part 5 meeting, and that ting, and that he should not get in the he should not get in the way of a criminal investigation or a conduct investigation by doing his own way of a criminal investigation or a conduct investigation by doing his own investigation. investigation. 58. 58. Mr Redrup said in evidence Mr Redrup said in evidence that when a school is made aware of a potential that when a school is made aware of a potential allealleggation that maation that mayy fall within section 5 fall within section 5 of the Wales Safeguarding Procedures of the Wales Safeguarding Procedures tthey are advised to contact the Education Safeguarding Team for advice and hey are advised to contact the Education Safeguarding Team for advice and guidance and the Education Safeguardingguidance and the Education Safeguarding officer officer ((i.e.i.e. Mr Redrup or his job Mr Redrup or his job share colleague) share colleague) will consider and advise if twill consider and advise if they think the matter has hey think the matter has potentially reached the threshold for consideration by the LADO/DOS.potentially reached the threshold for consideration by the LADO/DOS. He said He said that that at the time schools would come to hiat the time schools would come to him and he would assist by getting in m and he would assist by getting in touch with Ms Devonish and explain an allegation had been received by the touch with Ms Devonish and explain an allegation had been received by the sschchoolool, rather than the school making direct contact with Ms Devonish as , rather than the school making direct contact with Ms Devonish as DOS. DOS. He said he would make a referral to Ms Devonish if he thought the He said he would make a referral to Ms Devonish if he thought the threshold for section 5 was met. threshold for section 5 was met. Mr Redrup also said it is standard practice for Mr Redrup also said it is standard practice for staff to be toldstaff to be told the bare factthe bare fact an allegation has been made and it has been an allegation has been made and it has been referred treferred to safeguarding and no moo safeguarding and no more than thatre than that. He said this was because any . He said this was because any police investigation would take primacypolice investigation would take primacy, that, that the police need time to consider the police need time to consider that, and also because of that, and also because of a general risk a general risk of potential of potential coercion of complainants coercion of complainants or witnesses.or witnesses. Mr RedrupMr Redrup said part of any eventual strategy meeting would said part of any eventual strategy meeting would Case No: 1601026/2022 18 involve a involve a ddecision about what information could be provided as Childrens’ ecision about what information could be provided as Childrens’ Services and the police would be present at that meeting. Services and the police would be present at that meeting. 59. 59. Ms James’ evidence was that the school had a duty to report Ms James’ evidence was that the school had a duty to report a potenta potential ial safeguarding concern. She described Mr Redrup’s role as being a critical safeguarding concern. She described Mr Redrup’s role as being a critical friend friend to a school and to give advice on what information is needed to a school and to give advice on what information is needed to make a to make a decision. She said if a school took a decision without taking advice from a decision. She said if a school took a decision without taking advice from a safeguarding perspective safeguarding perspective the school would be failing in their statutory duties. the school would be failing in their statutory duties. Wales Safeguarding Procedures Wales Safeguarding Procedures and other policy and procedure and other policy and procedure documents documents 60. 60. Section 5 of the Wales Safeguarding Procedures Section 5 of the Wales Safeguarding Procedures set out the process where set out the process where there are safeguarding concerns about people there are safeguarding concerns about people in a position of trust in a position of trust who work who work with childwith childrenren. . Every council must have a LADO who may delegate Every council must have a LADO who may delegate responsibilities to a DOSresponsibilities to a DOS (Here Ms James and Ms Devonish respectively)(Here Ms James and Ms Devonish respectively).. TheThe Section 5Section 5 procedures [729] say that when considering use of the procedures [729] say that when considering use of the procedures a number of factors should be considered and some concerns procedures a number of factors should be considered and some concerns could be considered poor professional practice and may be appropriate tcould be considered poor professional practice and may be appropriate to be o be dealt with via an agencies’ own internal processes or through giving dealt with via an agencies’ own internal processes or through giving advice/trainingadvice/training. . It is said aIt is said any decision not to take further action should be ny decision not to take further action should be recorded and if agencies are unclear what action to takerecorded and if agencies are unclear what action to take they must seek they must seek appropriate advice from the DOSappropriate advice from the DOS. . It is said tIt is said the procedures should be used in he procedures should be used in all cases where it all cases where it isis alleged a person who works with children has:alleged a person who works with children has:• behaved in a way that has harmed or may have harmed a child;behaved in a way that has harmed or may have harmed a child;• May have committed a criminal ofMay have committed a criminal offence against a chilfence against a child or that has a d or that has a direct impact on the child;direct impact on the child;• Behaved towards a child/children in a way that indicateBehaved towards a child/children in a way that indicatess they are they are unsuitable to work with children.unsuitable to work with children. 61.We were not given 61.We were not given other parts of the Section 5 procedure other than the part other parts of the Section 5 procedure other than the part headed “concluding the process” [727]. But we were given other policy and headed “concluding the process” [727]. But we were given other policy and procedural documents. procedural documents. TheThere isre is the stthe statutoryatutory Welsh Welsh GGovernment overnment Guidance Guidance on on ssafeguarding children in education: afeguarding children in education: handling allegations of abuse against handling allegations of abuse against teachers and other staffteachers and other staff. . It It says it applies to all cases where it is alleged a says it applies to all cases where it is alleged a member of staff has behaved in a way that falls under the three bullet points member of staff has behaved in a way that falls under the three bullet points set out above. set out above. The Guidance The Guidance says that says that allegations need to allegations need to be dealt with by be dealt with by applying common sense and that many cases may not meet the criteria applying common sense and that many cases may not meet the criteria above where local arrangements can be followed to resolve cases without above where local arrangements can be followed to resolve cases without delay. It then saysdelay. It then says [309] that the LADO should be informed of all allegations [309] that the LADO should be informed of all allegations that come to a schoolthat come to a school’s attention and appear to meet the criteria’s attention and appear to meet the criteria,, so that the so that the LADO can consult children’s social services and the police, as appropriate. LADO can consult children’s social services and the police, as appropriate. 62. 62. TThathat statutory guidancestatutory guidance also says that the headteacheralso says that the headteacher/case manager/case manager should should immediately discuss the allegation with the LADO immediately discuss the allegation with the LADO and the purpose of the and the purpose of the initial discussion is for the LADO and case manager initial discussion is for the LADO and case manager to consider the nature, to consider the nature, content, and context of the allegation and agree a course of actioncontent, and context of the allegation and agree a course of action. It says the . It says the initial enquiries sinitial enquiries should establish that an allegation has been made, what is hould establish that an allegation has been made, what is alleged to have occurred, when and where the episode is alleged to have alleged to have occurred, when and where the episode is alleged to have occurred, who was involved, and any other person present [310]. occurred, who was involved, and any other person present [310]. Case No: 1601026/2022 19 63. 63. The The guidance says the initial evaluation between the casguidance says the initial evaluation between the case managee managerr and and LADO may lead to a decision that the allegation is demonstrably false or LADO may lead to a decision that the allegation is demonstrably false or unfounded and no further action is to be takunfounded and no further action is to be taken. en. Otherwise, the guidance says Otherwise, the guidance says that that the case manager should inform the accused person about the allegation the case manager should inform the accused person about the allegation as soon as as soon as possible after consulting the LADO andpossible after consulting the LADO and:: “It is important that the “It is important that the case manager provides them with as muchcase manager provides them with as much information as possible at that information as possible at that timtime. However, where a strategy discussion is needed, or police or children’s e. However, where a strategy discussion is needed, or police or children’s social services need to be involved, thesocial services need to be involved, the case manager should not do that until case manager should not do that until those agencies have been consulted and have agreed what information can those agencies have been consulted and have agreed what information can be disclosed to the person.” be disclosed to the person.” It also says that whilst the statutory authorities It also says that whilst the statutory authorities are considering the allegation, governing bodies should take no are considering the allegation, governing bodies should take no action other action other than to review and confirm the membership of staff disciplinary committees or than to review and confirm the membership of staff disciplinary committees or if there needs to be a decision to suspend [312].if there needs to be a decision to suspend [312]. 6 644.. The The gguidance says that if an allegation is not demonstrably false or uidance says that if an allegation is not demonstrably false or unfounded and there is cause to unfounded and there is cause to suspect a child is suffering or is likely to suspect a child is suffering or is likely to suffer significant harm a strategy discussion should be convenedsuffer significant harm a strategy discussion should be convened. It also says . It also says [315] that individuals should be informed of concerns or allegations as soon [315] that individuals should be informed of concerns or allegations as soon as possible and given an explanation of the likely couras possible and given an explanation of the likely course of action unless se of action unless there is an objection by children’s services or the policethere is an objection by children’s services or the police. . 6 655.. There is alsoThere is also separateseparate Welsh Government statutory guidance on disciplinary Welsh Government statutory guidance on disciplinary and dismissal procedures for school staff which has a section about and dismissal procedures for school staff which has a section about procedures for handling allegations of abuse against teachers and other staff procedures for handling allegations of abuse against teachers and other staff [400]. It refers back to the [400]. It refers back to the gguidance on safeguarding chiuidance on safeguarding children in education. It ldren in education. It again says that all allegations of child abuse against teachers must be again says that all allegations of child abuse against teachers must be reported to the headteacher who must immediately discuss the allegations reported to the headteacher who must immediately discuss the allegations with the with the LADO LADO who is responsible for overseeing such allegations, liaising who is responsible for overseeing such allegations, liaising with the stawith the statutory authorities and providing advice to the school governing tutory authorities and providing advice to the school governing body [403]. It says the purpose of the initial discussion is to consider the body [403]. It says the purpose of the initial discussion is to consider the nature, content and extent of the allegation and agree a course of action but nature, content and extent of the allegation and agree a course of action but not to investigate. not to investigate. It says the It says the discudiscussion will establish ssion will establish that an allegation has that an allegation has been made, what is alleged to have occurred, when and where it is alleged to been made, what is alleged to have occurred, when and where it is alleged to have occurred, who was involved and any other person presenthave occurred, who was involved and any other person present. . It goes on to It goes on to say that this evaluation may lead to a decision the allegasay that this evaluation may lead to a decision the allegation is demonstrably tion is demonstrably false or unfounded with no action to be takfalse or unfounded with no action to be taken. If so, agreement will be en. If so, agreement will be reached as to what information to put in writireached as to what information to put in writing. Otherwise, as per the other ng. Otherwise, as per the other guidance, if a referral is made, the governing body is to take no action other guidance, if a referral is made, the governing body is to take no action other than than reviewing their committee memberships or if they have to consider reviewing their committee memberships or if they have to consider suspending or reassignment to other duties. suspending or reassignment to other duties. 6 666.. We have been given two model staff disciplinary procedures. One is We have been given two model staff disciplinary procedures. One is appended to the statutory guidance appended to the statutory guidance on disciplinary and dismissal procedures on disciplinary and dismissal procedures for school staff [411]. The guidance itself is dated for school staff [411]. The guidance itself is dated February 2020. The other February 2020. The other version is at version is at [322] [322] dated January dated January 2021 but says it is based on a model 2021 but says it is based on a model procedure in a Welsh Government circular procedure in a Welsh Government circular 002/2020. 002/2020. Ms Ballantine in her Ms Ballantine in her witness statement refers to thwitness statement refers to this version starting at [322]. is version starting at [322]. ItIt includes a “formal includes a “formal procedure where the allegation relates to child protection issues” [338]. It procedure where the allegation relates to child protection issues” [338]. It says that allegations involving issues of child protection will be brought says that allegations involving issues of child protection will be brought immediately to the attention of the headteacher. immediately to the attention of the headteacher. It says: It says: ““The headteacher… The headteacher… will mawill make an initial assessment (but not investigate) to determine the nature ke an initial assessment (but not investigate) to determine the nature and circumstances of the allegation, i.e. witnesses, when it occurred, etc. If and circumstances of the allegation, i.e. witnesses, when it occurred, etc. If the conclusion is that beyond any doubt it is impossible for the allegation to be the conclusion is that beyond any doubt it is impossible for the allegation to be Case No: 1601026/2022 20 true the matter will be true the matter will be discussed by the chair of governors, headteacher and discussed by the chair of governors, headteacher and the lead child protection officer in the LA, to determine whether a referral to the lead child protection officer in the LA, to determine whether a referral to social services and/or the police is required”.social services and/or the police is required”. There may then be a decision There may then be a decision not to take any further action. On the other hnot to take any further action. On the other hand, if the initial assessment by and, if the initial assessment by the headteacher, in discussion with the LA lead child protection officer, the headteacher, in discussion with the LA lead child protection officer, indicates that an allegation might be true, there will be an immediate referral indicates that an allegation might be true, there will be an immediate referral for a strategy discussion involving the statutory authorities (sociafor a strategy discussion involving the statutory authorities (social services l services and/or the police) in accordance with local child protection procedures. and/or the police) in accordance with local child protection procedures. 6 677.. The disciplinary procedure also says: “The disciplinary procedure also says: “The employee will normally be The employee will normally be informed of the decision, as agreed by the statutory authorities that a referral informed of the decision, as agreed by the statutory authorities that a referral is being is being made.made.” It goes on to say there may be some circumstances where ” It goes on to say there may be some circumstances where this will not be appropriate, for example to avoid evidence being tampered this will not be appropriate, for example to avoid evidence being tampered with or if there is concern about the employee’s wellbeing. with or if there is concern about the employee’s wellbeing. 6 688.. As stated that seems to be the version Ms BallantiAs stated that seems to be the version Ms Ballantine was working from, but ne was working from, but we note for completeness that the model agreement appended to the we note for completeness that the model agreement appended to the Guidance on Disciplinary and Dismissal procedures for school staff saysGuidance on Disciplinary and Dismissal procedures for school staff says allegations of child abuse will be discussed by the headteacher with the local allegations of child abuse will be discussed by the headteacher with the local authority designated lead officer for safeguarding in education where there is authority designated lead officer for safeguarding in education where there is cause to believe a member of staff has harmed a pupil at cause to believe a member of staff has harmed a pupil at the school. There is the school. There is capacity to concludecapacity to conclude that the allegation is not true beyond reasonable doubtthat the allegation is not true beyond reasonable doubt. . On the On the other handother hand if the initial discussion and assessment indicates an if the initial discussion and assessment indicates an allegation might be true and there are concerns about the welfare of a child allegation might be true and there are concerns about the welfare of a child the local authority designated lead officer for the local authority designated lead officer for safeguarding in education will safeguarding in education will arrange a strategy discussion involving the statutory authorities and in arrange a strategy discussion involving the statutory authorities and in accordance with local child protection proceduresaccordance with local child protection procedures. It says:. It says: ““The headteacher The headteacher or chair will inform the member of staff about the allegation as soon as or chair will inform the member of staff about the allegation as soon as popossible after consulting the local authority designated lead officer for ssible after consulting the local authority designated lead officer for safeguarding in education. However, if a strategy discussion is needed, or safeguarding in education. However, if a strategy discussion is needed, or polipolicce or children’s social services need to be involved, no information will be e or children’s social services need to be involved, no information will be given until those given until those agencies have agreed what information can be disclosed to agencies have agreed what information can be disclosed to the member of staffthe member of staff.” .” 6 699. . There is also a document entitledThere is also a document entitled:: “Information for practitioners and those in “Information for practitioners and those in positions of trust who are subject to an allegation/concern under the Wales positions of trust who are subject to an allegation/concern under the Wales Safeguarding Safeguarding procedures [595]. procedures [595]. It says:It says: ““On receipt of an allegation, if after making initial enquiries (but not On receipt of an allegation, if after making initial enquiries (but not investigating) the headteacher considers investigating) the headteacher considers unequivocally that the allegation is unequivocally that the allegation is false (i.e. the circumstances show it is not possible for it to be true) they must false (i.e. the circumstances show it is not possible for it to be true) they must still discuss the mastill discuss the mattteter with the Chair of Governorsr with the Chair of Governors…… and the Local Authority and the Local Authority Designated Lead Officer for Child Protection. If Designated Lead Officer for Child Protection. If all parties agree that the all parties agree that the allegation cannot be true, the Headteacher need take no further action.allegation cannot be true, the Headteacher need take no further action. If it is not possible to unequivocally say the allIf it is not possible to unequivocally say the allegation is false, there will be a egation is false, there will be a referral to the statutory authorities. referral to the statutory authorities. You may be told that a referral is being made at this time but there may be You may be told that a referral is being made at this time but there may be circumstances where this might not be appropriate, if for example it could circumstances where this might not be appropriate, if for example it could prejudice any prejudice any inquiry/investigationinquiry/investigation..”” Case No: 1601026/2022 21 Comparators Comparators 70 70.. We were also referred to some comparator cases. We were also referred to some comparator cases. Mr Adkins had a tendency Mr Adkins had a tendency toto make assertions about the comparator cases that were not supported make assertions about the comparator cases that were not supported anywhere by anywhere by witness evidence. The claimant side could have called their own witness evidence. The claimant side could have called their own evidence about evidence about the comparators whether from the claimant herself or Mr the comparators whether from the claimant herself or Mr AdkinsAdkins or othersor others. They did not do so. We therefore base our findings not on . They did not do so. We therefore base our findings not on the assertions or submissions of Mr Adkins where unsupported by evidence, the assertions or submissions of Mr Adkins where unsupported by evidence, but instead on the witness evidence but instead on the witness evidence we were given (tested under cross we were given (tested under cross examination) by the respondents. examination) by the respondents. 7 711..Comparator 1 Comparator 1 cconcerns an allegation that comparator 1 did not leave the oncerns an allegation that comparator 1 did not leave the room room whenwhen (together with a learning support assist(together with a learning support assistantant)) dealing with a pupil dealing with a pupil with learning difficultieswith learning difficulties who was not fully clothed. who was not fully clothed. 3R did not personally deal 3R did not personally deal with comparator 1 and became aware of the incident in separate tribunal with comparator 1 and became aware of the incident in separate tribunal proceedings brought by proceedings brought by another teacheranother teacher against R1 and R2. The tribunal’s against R1 and R2. The tribunal’s judgment in that case can be found atjudgment in that case can be found at starting atstarting at [538].[538]. The issue was raised The issue was raised with twith the school by a Unison representativehe school by a Unison representative.. Mr Kennedy referred the Mr Kennedy referred the allegation to the safeguarding team allegation to the safeguarding team who concluded that who concluded that the allegation did not the allegation did not raise a safeguarding concern and that the pupil had been properly supportedraise a safeguarding concern and that the pupil had been properly supported. . 3R did not know who, in 3R did not know who, in particular, Mr Kennedy spoke withparticular, Mr Kennedy spoke with although the although the judgment in the Lancaster case at [570] states the referral email was sent to judgment in the Lancaster case at [570] states the referral email was sent to the education safeguarding officerthe education safeguarding officer. . ThereThere werewere no disciplinary proceedings no disciplinary proceedings against comparator 1. against comparator 1. 7 722.. Comparator 2 concerns an allComparator 2 concerns an allegation by 4 female egation by 4 female pupils in September 2019 pupils in September 2019 that a teacher had an overly friendly relationship with a child. There were no that a teacher had an overly friendly relationship with a child. There were no allegations of sexual impropriety. allegations of sexual impropriety. The concern was raised with the head of The concern was raised with the head of sixth form who contacted 3R. 3R sixth form who contacted 3R. 3R then made the then made the education safeguarding education safeguarding officer awareofficer aware (not Mr Redrup)(not Mr Redrup). 3R says he was new in post at the time and . 3R says he was new in post at the time and had limited experience of dealing with safeguarding matters and that he was had limited experience of dealing with safeguarding matters and that he was reliant on guidance from the education safeguarding team and HRreliant on guidance from the education safeguarding team and HR. . 3R 3R arranged to meearranged to meet the teacher and told t the teacher and told herher that there had been an allegation that there had been an allegation but provided no information beyond that. This was in accordance with the but provided no information beyond that. This was in accordance with the safeguarding advice 3R had received. safeguarding advice 3R had received. The teacher The teacher knew knew what the allegation what the allegation was about and gwas about and gaave some information that 3R was able to ve some information that 3R was able to add to the strategy add to the strategy meetingmeeting. Two strategy meetings took place. Two strategy meetings took place wiwith an eventual decision the th an eventual decision the allegations were unsubstantiatedallegations were unsubstantiated. . The concerns ultimately held related to the The concerns ultimately held related to the teacherteacher needing toneeding to reflect on reflect on professional bouprofessional boundariesndaries. . 3R, HR and the Chair 3R, HR and the Chair of Governors decided it was not appropriate to commence disciplinary of Governors decided it was not appropriate to commence disciplinary proceedings but to instead speak to proceedings but to instead speak to comparator 2 about professional comparator 2 about professional boundaries.boundaries. Comparator 2 had not been suspended Comparator 2 had not been suspended as there was no as there was no suggestion from the local authority that it was needed. suggestion from the local authority that it was needed. 7 733.. Comparator 3 Comparator 3 faced an allegation in May 2021 relating to faced an allegation in May 2021 relating to alleged alleged inappropriate touching and language. 3R referred the allegation to the inappropriate touching and language. 3R referred the allegation to the safeguarding teamsafeguarding team which included speaking inwhich included speaking initially with Mr Redrupitially with Mr Redrup. . 3R 3R also also took advice from HR who recommended that the teacher not remain in the took advice from HR who recommended that the teacher not remain in the school whilst the safeguarding investigation was ongoingschool whilst the safeguarding investigation was ongoing. 3R telephoned the . 3R telephoned the teacher to say thatteacher to say that there had been an allegation athere had been an allegation and 3Rnd 3R was considering was considering suspending suspending comparator 3comparator 3. The teacher proposed . The teacher proposed working from home without working from home without any pupil contact and due to the covid 19 pandemic there was work they any pupil contact and due to the covid 19 pandemic there was work they could undertakcould undertake. There was ae. There was a strategy meeting and then astrategy meeting and then a police police Case No: 1601026/2022 22 investigation investigation who who found no evidence in support of the allegationsfound no evidence in support of the allegations. . There was There was then a second strategy meeting where then a second strategy meeting where the allegation wasthe allegation was found to befound to be unsubstantiated. unsubstantiated. The school decided not to undertake separate disciplinary The school decided not to undertake separate disciplinary proceedingsproceedings, following advice from HR,, following advice from HR, on the basis thon the basis that a disciplinary at a disciplinary investigation would not elicit more information than that already investigation would not elicit more information than that already obtained in obtained in the police investigation. the police investigation. Comparator 3 had been told there was an allegation Comparator 3 had been told there was an allegation against him with no further detail of that allegatioagainst him with no further detail of that allegation, including during the 3 n, including during the 3 week week police investigation. police investigation. 7 744.. Comparator 4 Comparator 4 works at a different school and therefore was not dealt with by works at a different school and therefore was not dealt with by 1R or 3R.1R or 3R. The allegations were also not dealt with by The allegations were also not dealt with by MMr Browne.r Browne. There have There have beenbeen several different several different allegations against comparator 4allegations against comparator 4. . OneOne allegation was allegation was passed on by Mr Adkinpassed on by Mr Adkinss which was a handwritten note signed by a young which was a handwritten note signed by a young person. It was referred to safeguarding who directed that person. It was referred to safeguarding who directed that parental consent be parental consent be obtained, and that has not yet taken placeobtained, and that has not yet taken place. The second allegation . The second allegation was was referred and found noreferred and found not to meet the threshold for safeguarding as thet to meet the threshold for safeguarding as the account account given by the child to a Youth Officer differed to the allegation the parent had given by the child to a Youth Officer differed to the allegation the parent had made. made. The third allegation related to alleged comments The third allegation related to alleged comments to a pupil of an to a pupil of an alleged inappropriate nature. Againalleged inappropriate nature. Again,, the allegation was referred to the allegation was referred to safeguarding. safeguarding. There was a police investigationThere was a police investigation who found there had been no who found there had been no criminal offencecriminal offence. . There was a strategy meeting at which it was found the There was a strategy meeting at which it was found the threshold had not been metthreshold had not been met as the comments was not considered to be as the comments was not considered to be predatpredatory, albeit they had made pupils feel uncomfortable. Iory, albeit they had made pupils feel uncomfortable. It was referred t was referred back to the school to deal with. Comparator 4 was back to the school to deal with. Comparator 4 was then told then told about the about the specific allegationsspecific allegations. We accept Ms Ballantine’s evidence. We accept Ms Ballantine’s evidence, which she reiterated , which she reiterated when recalled to give evidence,when recalled to give evidence, that that terms of reference have been drawn up terms of reference have been drawn up for for an investigation, part of an investigation, part of which covered this matter as well as other which covered this matter as well as other separate issues which had since come to lightseparate issues which had since come to light.. We also do not find it We also do not find it established (it was denied by Mr Redrup in cross examination) that he said established (it was denied by Mr Redrup in cross examination) that he said at at the strategy meeting to a police officer that the the strategy meeting to a police officer that the Vale of Glamorgan like to do Vale of Glamorgan like to do their own investigations. their own investigations. We were given no positive evidence that Mr Redrup We were given no positive evidence that Mr Redrup had had done so.done so. Findings of fact about the initial steps on receipt of the parental Findings of fact about the initial steps on receipt of the parental complaintcomplaint 7 755.. From From the evidence wethe evidence we dodo have we conclude that it was 3R’s approach at the have we conclude that it was 3R’s approach at the time to take advice from time to take advice from HR andHR and fromfrom safeguardingsafeguarding,, via Mr Redrup. via Mr Redrup. 3R3R was was relatively new in postrelatively new in post as headas head andand, in terms of his teaching career,, in terms of his teaching career, did not did not come from a safeguarding background. come from a safeguarding background. We consider it likely and find that he We consider it likely and find that he was worried when he saw thewas worried when he saw the parental email. It was headed “urgentparental email. It was headed “urgent-- safeguarding matter.” It came from parents who were a school governor and a safeguarding matter.” It came from parents who were a school governor and a police officer. police officer. We consider We consider it likely that 3R’s reaction was that he needed to it likely that 3R’s reaction was that he needed to seek adviceseek advice. He had done so in other cases too. He had done so in other cases too, such as with comparators 2 , such as with comparators 2 and 3. and 3. We consider it likely that 3R had not definitively decided exactly what We consider it likely that 3R had not definitively decided exactly what he was going to say to 3R when asking to meet with he was going to say to 3R when asking to meet with her that afternoonher that afternoon because he was in the process of seeking advicebecause he was in the process of seeking advice in the meantimein the meantime. The . The immediacy of that was then taken of his hands because the claimant declined immediacy of that was then taken of his hands because the claimant declined to meet with him to meet with him unless in the circumstances she had outlined. unless in the circumstances she had outlined. 7 766.. We do not think it likely that 3R undertook a forensic analysis of particular We do not think it likely that 3R undertook a forensic analysis of particular aspects of the parental comaspects of the parental complaintplaint. The . The specific specific complaint about alleged used complaint about alleged used of the N word was therefore not forefront in his mind or actionsof the N word was therefore not forefront in his mind or actions. . 3R3R spoke with spoke with Ms BallantineMs Ballantine. She did not have a copy of the parental email and 3R did not . She did not have a copy of the parental email and 3R did not Case No: 1601026/2022 23 read the whole thing out to her. read the whole thing out to her. We accept her evidence that she We accept her evidence that she thought thought some of the alleged comments that 3R had summarissome of the alleged comments that 3R had summarised to her had the ed to her had the potential to cause emotional harmpotential to cause emotional harm and therefore be a safeguarding matterand therefore be a safeguarding matter, , specifically the alleged comments about a gay pupil and the alleged commenspecifically the alleged comments about a gay pupil and the alleged comment t not to trust the police, and that to err on the side of cautionnot to trust the police, and that to err on the side of caution 3R should contact 3R should contact Mr Redrup for advice. Mr Redrup for advice. 3R followed that advice and telephoned Mr Redrup. 3R followed that advice and telephoned Mr Redrup. We We think it likely and therefore find that the conversation between 3R and Mr think it likely and therefore find that the conversation between 3R and Mr Redrup on 11 October Redrup on 11 October was likely to be quite short was likely to be quite short as it is likely Mr Redrup as it is likely Mr Redrup would have asked 3R to forward on the email. Mr Redrup is a retired police would have asked 3R to forward on the email. Mr Redrup is a retired police officer officer and used to receiving and assessing evidence, and used to receiving and assessing evidence, and we consider it and we consider it likely likely he would have asked to see the actual email. 3R then forwarded it on to he would have asked to see the actual email. 3R then forwarded it on to Mr Redrup as requested. Mr Redrup as requested. At that pointAt that point, in our judgement,, in our judgement, it was then in reality it was then in reality taken out of 3R’s handstaken out of 3R’s hands.. 7 777.. We consider that in We consider that in taking these stepstaking these steps 3R and Ms Ballantin3R and Ms Ballantine were e were following following the course of action that they generally took when a potential safeguarding the course of action that they generally took when a potential safeguarding concern aroseconcern arose,, and and was the processwas the process they understood the statutory guidance they understood the statutory guidance and policies and procedures said that they shouldand policies and procedures said that they should followfollow. . Their evidence is Their evidence is consistent that partconsistent that part of Mr Redrup’s role was to give advice as to whether of Mr Redrup’s role was to give advice as to whether something has potentially reached the threshold for being a safeguarding something has potentially reached the threshold for being a safeguarding mattermatter and thatand that, irrespective of the exact wording of policies or statutory , irrespective of the exact wording of policies or statutory guidance, in practice Mr Redrup guidance, in practice Mr Redrup or anor anotherother education education safeguarding officer safeguarding officer would generally be their would generally be their first port of call rather thanfirst port of call rather than going straight togoing straight to the DOS the DOS or LADOor LADO. . 3R and Ms Ballantine’s3R and Ms Ballantine’s actions in that regard are also consistent actions in that regard are also consistent with the comparator cases.with the comparator cases. It is also consistent with Mr Redrup’s evidence It is also consistent with Mr Redrup’s evidence that he delivers annual trainthat he delivers annual training to school leaders, part of which is to telling to school leaders, part of which is to tell schools to contact the education safeguarding team to discuss whether a schools to contact the education safeguarding team to discuss whether a referral needs to be madereferral needs to be made and Ms James’ evidence that Mr Rand Ms James’ evidence that Mr Redrup’s role was edrup’s role was to act as a critical friend.to act as a critical friend. 7 788.. We find that We find that Mr Redrup, for the reasons outlined in his evidenceMr Redrup, for the reasons outlined in his evidence summarised summarised above,above, considered it was a potential safeguarding matter.considered it was a potential safeguarding matter. He discussed it with He discussed it with Ms Devonish and forwarded on the email to her. Ms Devonish and forwarded on the email to her. We find that Ms Devonish,We find that Ms Devonish, likewise considered it was a potential safeguarding mattelikewise considered it was a potential safeguarding matterr,, again for the again for the reasons set out in her evidencereasons set out in her evidence summarised abovesummarised above. Ms Devonish. Ms Devonish decidedecided to d to engage engage section 5 Wales Safeguarding Procedures. Ms Devonish thensection 5 Wales Safeguarding Procedures. Ms Devonish then undertook the first step that she would in any case, which was to undertook the first step that she would in any case, which was to contact the contact the policepolice for afor a strategystrategy discussiondiscussion. . Thereafter a strategy meeting would be Thereafter a strategy meeting would be arranged. arranged. We find it likely that allWe find it likely that all ofof this hathis had happened d happened on the afternoon of 11 on the afternoon of 11 October 2021October 2021,, or at the very latest or at the very latest early in theearly in the morning of 12 October 2021morning of 12 October 2021 because by the next morning 3R was recording in his email records (see because by the next morning 3R was recording in his email records (see below) that there was to be a safeguarding meetingbelow) that there was to be a safeguarding meeting.. 12 October 202112 October 2021 7 799.. On the morning of 12 October 2021 3R spoke again with Ms BallantineOn the morning of 12 October 2021 3R spoke again with Ms Ballantine at at 9:52 [84]9:52 [84]. . Just after 10am 3RJust after 10am 3R then spoke with Mr Redrupthen spoke with Mr Redrup about completing a about completing a risk assessmentrisk assessment whilst the allegationswhilst the allegations were being considered under the were being considered under the safeguarding proceduressafeguarding procedures.. By then it was known that By then it was known that there was to be a there was to be a safeguarding meeting because 3R records that in his note at [84]. safeguarding meeting because 3R records that in his note at [84]. Mr Mr Redrup’s advRedrup’s adviiccee was that the claimant could remain in school teaching but a was that the claimant could remain in school teaching but a second adult should be present second adult should be present in the classroom. He advised 3R to in the classroom. He advised 3R to meet with meet with the claimant and say briefly that an allegation had been made, was being the claimant and say briefly that an allegation had been made, was being Case No: 1601026/2022 24 looked at by safeguarding, and to protect her and the pupils a learning looked at by safeguarding, and to protect her and the pupils a learning support assistant would be in her lessonsupport assistant would be in her lessonss. . Later that afternoon Mr Redrup Later that afternoon Mr Redrup also emailed Ms Devonish [8also emailed Ms Devonish [85] referring to the school and HR having been in 5] referring to the school and HR having been in touch querying the process and about the completion of a risk plantouch querying the process and about the completion of a risk plan, and , and asking her if she had managed to make contact with the police/school. asking her if she had managed to make contact with the police/school. 80 80.. 3R asked Mr Kennedy to visit the claimant in her 3R asked Mr Kennedy to visit the claimant in her classroom and request she classroom and request she attend 3R’s officeattend 3R’s office. . They spoke in the corridor and the claimant said They spoke in the corridor and the claimant said that that 3R3R was aware of her reluctance to was aware of her reluctance to meet with 3R as no further information had meet with 3R as no further information had been forthcoming. been forthcoming. Mr Kennedy told 3R that the claimant would not meet Mr Kennedy told 3R that the claimant would not meet with with himhim. . 8 811.. 3R therefore contacted Ms Ballantine for further advice3R therefore contacted Ms Ballantine for further advice [84][84]. . They decided They decided that someone that someone should beshould be placed in the claimant’s classroom straight away.placed in the claimant’s classroom straight away. Ms Ms BallantineBallantine told 3R to go to the claimant’s classroom himself and tell her an told 3R to go to the claimant’s classroom himself and tell her an allegation had been made, was being considered by safeguarding, and as a allegation had been made, was being considered by safeguarding, and as a consequence a teaching assistant would need to be inconsequence a teaching assistant would need to be in the claimant’s classes. the claimant’s classes. Ms Ballantine considered that they could not just ask a Ms Ballantine considered that they could not just ask a learning support learning support assistant to walk in and sit in a class without first notifying the claimant. assistant to walk in and sit in a class without first notifying the claimant. 8 822.. 3R followed Ms Ballantine’s advice and went to the claimant’s 3R followed Ms Ballantine’s advice and went to the claimant’s classroom and classroom and askedasked the claimantthe claimant to speak to speak with him. with him. 3R3R was accompanied by a LSA whowas accompanied by a LSA who went to sit with the classwent to sit with the class.. 3R and the claimant 3R and the claimant went into a nearby empty went into a nearby empty classroom and 3R told the claimant he had received aclassroom and 3R told the claimant he had received an allegation n allegation that was that was being looked at by being looked at by safeguardingsafeguarding. The claimant asked for further information . The claimant asked for further information about the nature of the complaint about the nature of the complaint and 3R stated that he could not inform her and 3R stated that he could not inform her of the details. of the details. The claimant felt this was not the case and said she would The claimant felt this was not the case and said she would contact her union.contact her union. She said she had to teach a whole day and could not deal She said she had to teach a whole day and could not deal with it. 3R told her she had a choice what to do next and the claimant then with it. 3R told her she had a choice what to do next and the claimant then returned to her classroom.returned to her classroom. We reject the claimant’s assertion that 3R was We reject the claimant’s assertion that 3R was taking some form of gratification from the situataking some form of gratification from the situationtion or that he had somehow or that he had somehow inappropriately taken her into an empty classroominappropriately taken her into an empty classroom against her wishesagainst her wishes. . We We preferred 3R’s account in this regardpreferred 3R’s account in this regard, not least because the claimant’s , not least because the claimant’s account of the meeting had become more extreme as time went onaccount of the meeting had become more extreme as time went on and was and was not reflectnot reflected in the initial account she gave to her union at ed in the initial account she gave to her union at [89[89--90]. 90]. We accept We accept 3R3R found it was a difficult situation and indeed the claimant had forced his found it was a difficult situation and indeed the claimant had forced his hand in that regard in refusing to meet with him hand in that regard in refusing to meet with him otherother thanthan on her terms. on her terms. But But we also accept thewe also accept the claimantclaimant was understandably unnerved and upsetwas understandably unnerved and upset and and feeling vulnerablefeeling vulnerable as she did not have the details of the complaint that had as she did not have the details of the complaint that had been made. been made. The claimant The claimant became increasingly upsetbecame increasingly upset at the situationat the situation and later and later went home with a migraine.went home with a migraine. It was not known at the time, but she ultimately It was not known at the time, but she ultimately ended up being signed off work for a 6 month period. ended up being signed off work for a 6 month period. 8 833.. In the afternoon Ms Setchfield from the NASUWT emailed 3R asking to see a In the afternoon Ms Setchfield from the NASUWT emailed 3R asking to see a copy of the parental complacopy of the parental complaint [83]. 3R responded to confirm a parental int [83]. 3R responded to confirm a parental complaint had been received which had been sent to the safeguarding team complaint had been received which had been sent to the safeguarding team and he had followed their advice in telling and he had followed their advice in telling the claimant that an allegation had the claimant that an allegation had been made which the safeguarding team were currently looking at. been made which the safeguarding team were currently looking at. 3R 3R said he said he was unable to provide detaiwas unable to provide details of what the allegation is at the time and to ls of what the allegation is at the time and to protect the claimant and pupils an LSA would remain in lessons until he protect the claimant and pupils an LSA would remain in lessons until he received further advice from the safeguarding team. received further advice from the safeguarding team. Case No: 1601026/2022 25 8 844.. We find that We find that in not giving the claimant information beyond the fact a parental in not giving the claimant information beyond the fact a parental complaint/ allegation had been received 3R was following the advice he had complaint/ allegation had been received 3R was following the advice he had been given by been given by Mr Redrup. It also accorded with the advice and approach that Mr Redrup. It also accorded with the advice and approach that had been taken in other caseshad been taken in other cases such as csuch as comparators 2 and 3. omparators 2 and 3. It also accorded It also accorded with with the Welsh Government statutory guidance the Welsh Government statutory guidance which says that the case which says that the case manager should not provide information until the agencies have been manager should not provide information until the agencies have been consulted/ the strategy discussion has taken place to agree what consulted/ the strategy discussion has taken place to agree what information information can be disclosed. Likewisecan be disclosed. Likewise,, the disciplinary policy says that an employee will the disciplinary policy says that an employee will normally be informed of the decision that a referral is being made (i.e. that normally be informed of the decision that a referral is being made (i.e. that there is a referral, there is a referral, but but not the details of the allegation). not the details of the allegation). Run up to the s Run up to the safeguardiafeguarding strategy meeting ng strategy meeting 8 855.. On 14 October 20On 14 October 2021 3R 21 3R emailed Mr Redrup emailed Mr Redrup chasing up if chasing up if Mr RedrupMr Redrup knew knew when the part 5 meeting would be [92]. Mr Redrup in turn when the part 5 meeting would be [92]. Mr Redrup in turn chased Ms chased Ms Devonish and Ann WilliamsDevonish and Ann Williams, a Principal Officer in social services [93]. Ms , a Principal Officer in social services [93]. Ms Devonish said that it would be the following week and she would make Devonish said that it would be the following week and she would make contact with 3R that day [93]. contact with 3R that day [93]. That afternoon Ms Devonish emailed 3R and Mr That afternoon Ms Devonish emailed 3R and Mr Redrup Redrup with the likely date for the professional with the likely date for the professional strategy meeting. She also strategy meeting. She also said: “said: “The current information we have is third party and it will therefore be The current information we have is third party and it will therefore be difficult to outcome the meeting based on this alone, whilst I’m aware no type difficult to outcome the meeting based on this alone, whilst I’m aware no type of “investigation” can take place, a preliminary should happen; potentiof “investigation” can take place, a preliminary should happen; potentially this ally this could involve clarifying with the child what was actually said and asking other could involve clarifying with the child what was actually said and asking other children in the class to describe the lesson? Would there be any problem with children in the class to describe the lesson? Would there be any problem with this?”this?” [94].[94]. 8 866.. On the morning of 15 October 2021 [100] Mr Redrup On the morning of 15 October 2021 [100] Mr Redrup emailed saying he emailed saying he thought the suggestion made sense and asked 3R if thought the suggestion made sense and asked 3R if 3R3R would be able to would be able to ““facilitate a very open nonfacilitate a very open non--leading chat with the child who reported leading chat with the child who reported to, clarify to, clarify what is contained in letter/ what was said.what is contained in letter/ what was said. Perhaps it would be an idea to ask the chPerhaps it would be an idea to ask the child who else in the class heard what ild who else in the class heard what was said so that a selection of students/ use your professional judgement as was said so that a selection of students/ use your professional judgement as to the most suitable students to be to the most suitable students to be spoken who could be spoken to as spoken who could be spoken to as opposed to a general canvass of childrenopposed to a general canvass of children.. Innes, HRInnes, HR and me from education would need to attend the s.5. I can then link and me from education would need to attend the s.5. I can then link back in with the school governing body dependent on the outcome of the back in with the school governing body dependent on the outcome of the meeting.”meeting.” 8 877.. By 15 October Mr Adkins had taken over asBy 15 October Mr Adkins had taken over as the claimant’s the claimant’s NASUWT NASUWT representative. He emailedrepresentative. He emailed 3R3R asking asking for an updatefor an update. Mr Adkins . Mr Adkins asked 3R why asked 3R why he had breached the statutory disciplinary procedure in failing to make initial he had breached the statutory disciplinary procedure in failing to make initial inquiries into the complaint, inquiries into the complaint, on what basis 3R considered it to be a on what basis 3R considered it to be a safeguarding matter, and why 3R had failed to disclose details of the nature of safeguarding matter, and why 3R had failed to disclose details of the nature of the complaint other than in the most general of terms. Mr Adkins the complaint other than in the most general of terms. Mr Adkins accused 3R accused 3R of having madeof having made aa knee jerk reactionknee jerk reaction. Mr Adkins . Mr Adkins questioned 3Rquestioned 3R’s management ’s management capabilities, and capabilities, and said said 3R had delegated3R had delegated hishis managementmanagement responsibilitiesresponsibilities to to social services and HR [96]. 3R forwarded the email on to Ms Dickinson in HR social services and HR [96]. 3R forwarded the email on to Ms Dickinson in HR [96] [96] and said he was not happy to deal with Mr Adkins and said he was not happy to deal with Mr Adkins given the language given the language being used and acbeing used and accusations made. cusations made. Case No: 1601026/2022 26 8 888.. On 15 October Ms Ballantine emailed 3R to say she had spoken to On 15 October Ms Ballantine emailed 3R to say she had spoken to Ms Ms Williams on the afternoon of 14 October.Williams on the afternoon of 14 October. She says, and we accept, that it She says, and we accept, that it was was following 3R raising concerns about the claimant, her welfare, and what following 3R raising concerns about the claimant, her welfare, and what details details could be shared with her. Ms Ballantine said in her email:could be shared with her. Ms Ballantine said in her email: “We “We discussed what you can advise Steph as I know you are concerned about her, discussed what you can advise Steph as I know you are concerned about her, and she advised me that now the police has given the go ahead for the and she advised me that now the police has given the go ahead for the preliminary preliminary iinquiries to take place we can advise Steph the nquiries to take place we can advise Steph the matter relates to matter relates to the content of the lesson where a parent has subsequently raised a concern.the content of the lesson where a parent has subsequently raised a concern. When who ever undertakes the preliminary When who ever undertakes the preliminary investigation, can you ensure that investigation, can you ensure that there are no leading questions asked of other pupils in the room so they there are no leading questions asked of other pupils in the room so they would be more general would be more general so how did you find the lesson on x date? and what so how did you find the lesson on x date? and what was it about? and was it about? and not a not a case of asking did the teacher say x y and z”case of asking did the teacher say x y and z” 8 899.. We do not have the email itself but it is apparent that following this 3R sent an We do not have the email itself but it is apparent that following this 3R sent an email to Ms Setchfield (in place of Mr Adkins). email to Ms Setchfield (in place of Mr Adkins). It led to Mr Adkins sending a It led to Mr Adkins sending a rely to 3R [98] rely to 3R [98] sayingsaying:: ““I note you do not respond to my email but to Mrs I note you do not respond to my email but to Mrs Setchfield in advisinSetchfield in advising her the complaint was in respect of the content of the g her the complaint was in respect of the content of the lesson. This is not a safeguarding matter. Your ability to act in apparent lesson. This is not a safeguarding matter. Your ability to act in apparent absence of any knowledge of the safeguarding procedures gives rise to absence of any knowledge of the safeguarding procedures gives rise to further further concerns about your capabilityconcerns about your capability.” Mr Adkins .” Mr Adkins asked 3R to look at the asked 3R to look at the definition of emotidefinition of emotionalonal abuseabuse, accused 3R of taking relish in seeking to , accused 3R of taking relish in seeking to incriminate incriminate the claimantthe claimant, , and said that all content would be detailed in a and said that all content would be detailed in a lesson plan as part of a scheme of work producedlesson plan as part of a scheme of work produced or approvedor approved by the Heaby the Head of d of Faculty/ DepartmentFaculty/ Department rather than the claimant personally.rather than the claimant personally. 90 90.. Ms Devonish’s evidence Ms Devonish’s evidence is that she could recall 3R being concerned about is that she could recall 3R being concerned about what information he could share with the claimant and that she had directed what information he could share with the claimant and that she had directed him in accordance with section 5 procedures that he could only share that a him in accordance with section 5 procedures that he could only share that a safeguarding concern had been raised in relation safeguarding concern had been raised in relation to thto the specific lessons and e specific lessons and was there anything was there anything the claimantthe claimant would like to put forward. would like to put forward. 91 91.. There does not appear to be any There does not appear to be any evidence of Ms Devonish and 3R directly evidence of Ms Devonish and 3R directly speaking at this point in time. It appears to us that most likely the enquiry speaking at this point in time. It appears to us that most likely the enquiry went through a chwent through a chain from 3R to Ms Ballantine to Ms Williams to Ms ain from 3R to Ms Ballantine to Ms Williams to Ms Devonish. Devonish. As statedAs stated,, we do not have the actual email then sent by 3R to Mr we do not have the actual email then sent by 3R to Mr Adkins but it appears to us likely Adkins but it appears to us likely from Mr Adkins’ response that he was simply from Mr Adkins’ response that he was simply told told by 3R by 3R that the complaint was about the content of a lesson, with no that the complaint was about the content of a lesson, with no further indication being given as to whichfurther indication being given as to which particular lesson on a particular particular lesson on a particular date. We consider it likely and finddate. We consider it likely and find as a matter of factas a matter of fact that that this was 3Rthis was 3R’’s s genuinegenuinely heldly held understanding of understanding of Ms Ballantine’s email where she Ms Ballantine’s email where she referred to referred to the “content of the lesson.”the “content of the lesson.” ButBut wwe do not consider that this is what Ms e do not consider that this is what Ms Devonish actually intended. Devonish actually intended. Ms DevonishMs Devonish referreferredred in her evidence to the in her evidence to the “specific lesson“specific lessonss” and we consider it likely that she intended the claimant be ” and we consider it likely that she intended the claimant be told what specific lesson or lessons the parental complaint related totold what specific lesson or lessons the parental complaint related to. . It It accords with what else was going on at the time which wasaccords with what else was going on at the time which was that the police hathat the police hadd been spoken tobeen spoken to,, andand the preliminary the preliminary eenquirnquiriesies taking place with pupils at taking place with pupils at which which they would be asked open questions, but open questions about a they would be asked open questions, but open questions about a lesson on a particular date lesson on a particular date –– ii..e. some frame of reference was being givene. some frame of reference was being given to to the pupilsthe pupils. . It accords with It accords with the sense Mr Redrup gave in his evidence that the sense Mr Redrup gave in his evidence that what information is to be released to the subject of the allegation is tighwhat information is to be released to the subject of the allegation is tightly tly controlled at the start whilst there is evaluation by the statutory authoritiescontrolled at the start whilst there is evaluation by the statutory authorities,, who can then risk assess and decide who can then risk assess and decide who can be told what and when from who can be told what and when from Case No: 1601026/2022 27 there. there. It also accords with Ms James’ evidence that It also accords with Ms James’ evidence that a decision how much a decision how much information to give would be made on an individual basis. information to give would be made on an individual basis. 9 922.. Also on 15 October the claimantAlso on 15 October the claimant contacted her GP and was signed off work. contacted her GP and was signed off work. She was prShe was prescribed sleeping tablets and migraine relief. escribed sleeping tablets and migraine relief. 9 933.. Ms Prosser, Assistant Headteacher, was tasked with making Ms Prosser, Assistant Headteacher, was tasked with making enquiries with enquiries with pupils. She sent 3R an email on 18 October 2021 [101] pupils. She sent 3R an email on 18 October 2021 [101] saying that she had saying that she had spoken to 5 children. She wrote:spoken to 5 children. She wrote: ““Child oneChild one (the original complainant): (the original complainant): was extremely clear about what was was extremely clear about what was said and felt that the comments made were inappropriate for a teacher to said and felt that the comments made were inappropriate for a teacher to make.make. Child Child two:two: agreed that there had been some political viewagreed that there had been some political viewss shared and that shared and that some of what the teacher said was to insome of what the teacher said was to insightsight discussion but that some of her discussion but that some of her views made him uncomfortableviews made him uncomfortable ((notably the use of the word notably the use of the word “n”“n” and and ““queerqueer”” and the description of a year 11 pupil who spoke in a particular voiceand the description of a year 11 pupil who spoke in a particular voice.. Child Child threethree:: felt that the teacher had expressed her lack of trust for the police felt that the teacher had expressed her lack of trust for the police and stated that she would not go into a police car late at night and would ask and stated that she would not go into a police car late at night and would ask for support from a friend.for support from a friend. CChildhild fourfour//fivefive could not remember details of the discussioncould not remember details of the discussion””.. Safeguarding Strategy Meeting Safeguarding Strategy Meeting 9 944.. TheThe partpart 5 strategy meeting took place on 19 October 2021 attended by Ms 5 strategy meeting took place on 19 October 2021 attended by Ms Devonish as chair, Ms Ballantine, Mr Redrup, Mr Robinson and Detective Devonish as chair, Ms Ballantine, Mr Redrup, Mr Robinson and Detective Inspector Allsopp from South Wales Police. The minutes are at [671] albeit Inspector Allsopp from South Wales Police. The minutes are at [671] albeit they are drafted in a way that makes the sequthey are drafted in a way that makes the sequence of discussion difficult to ence of discussion difficult to follow because they summarise each individual’s input follow because they summarise each individual’s input rather than rather than summarising sequentially the discussion as it happened. summarising sequentially the discussion as it happened. 9 955.. The minutes record Ms Devonish The minutes record Ms Devonish acknowledging that concluding an outcome acknowledging that concluding an outcome in this way was in this way was problematic at times. She said that words and events can be problematic at times. She said that words and events can be interpreted differentlyinterpreted differently. The minutes say “. The minutes say “Nicole cited Brian’s example that the Nicole cited Brian’s example that the context of the conversation involving the N word may have been in relation to context of the conversation involving the N word may have been in relation to some starting to use it as a form of esome starting to use it as a form of empowerment. Conversely, questions mpowerment. Conversely, questions remained about the use of the word “Queer” and her specifically referencing a remained about the use of the word “Queer” and her specifically referencing a child who’s voice she described as annoying, which was personal.child who’s voice she described as annoying, which was personal. NNicole concluded her determination would have been unsubstantiated at this icole concluded her determination would have been unsubstantiated at this stage in the process until further information had been collated. Conversely, stage in the process until further information had been collated. Conversely, the majority of professionals had determined the allegation is substantiated.the majority of professionals had determined the allegation is substantiated. This adjacent to Miss ByfiThis adjacent to Miss Byfield stating there only being 2 genders and other eld stating there only being 2 genders and other concerns, concluded that the allegation status at present would be concerns, concluded that the allegation status at present would be substantiated. The school would now need to complete their own internal substantiated. The school would now need to complete their own internal investigation and disciplinary and feedback the findings outcome to investigation and disciplinary and feedback the findings outcome to Nicole.Nicole.”” 9 966.. Ms Devonish had also stated that the next stage in the process would be for Ms Devonish had also stated that the next stage in the process would be for the school to conduct their own internal investigation but conversely an the school to conduct their own internal investigation but conversely an Case No: 1601026/2022 28 outcome from the section 5 meeting was required before this could transpire. outcome from the section 5 meeting was required before this could transpire. She also identified the need for support for thShe also identified the need for support for the claimant and the pupils. e claimant and the pupils. 9 977.. In the minutes In the minutes Mr Redrup acknowledged the difficulty in determining an Mr Redrup acknowledged the difficulty in determining an outcome based on restricted information and there being no account from the outcome based on restricted information and there being no account from the claimant, but claimant, but referred to some consistencies in the accounts of the pupils. His referred to some consistencies in the accounts of the pupils. His perspective on balance was that the allegatiperspective on balance was that the allegation should be concluded as on should be concluded as substantiated. substantiated. 9 988.. 3R 3R acknowledged concerns expressed by DI Allsopp but agreed with Mr acknowledged concerns expressed by DI Allsopp but agreed with Mr Redrup on the balance of probability the outcome should be substantiated. Redrup on the balance of probability the outcome should be substantiated. DI DI Allsopp Allsopp raised the question of whether child one and child two knew each raised the question of whether child one and child two knew each other and whether they could be close frother and whether they could be close friends. iends. He saidHe said:: ““Moreover, the Moreover, the teachers background in relation to ethnicity wasn’t known and outside of the teachers background in relation to ethnicity wasn’t known and outside of the professional arena there was an awareness of some using the word as a form professional arena there was an awareness of some using the word as a form of empowermentof empowerment. Conversely any professional should prove mindful of their . Conversely any professional should prove mindful of their audience and context. audience and context. In relation to the other matters, they would not be In relation to the other matters, they would not be categorised as criminal in nature as much as they were concerning in regard categorised as criminal in nature as much as they were concerning in regard to transferable risk. This was a matter for tto transferable risk. This was a matter for the employer to manage as seen he employer to manage as seen appropriate.appropriate.”” 9 999.. DI Allsopp said he would prefer further information before determining an DI Allsopp said he would prefer further information before determining an outcome on such limited information and the claimant’s version of events had outcome on such limited information and the claimant’s version of events had not been heardnot been heard. Conversely he acknowledged that it was p. Conversely he acknowledged that it was part of the process art of the process and there were three pupils depicting similar elements of conduct which would and there were three pupils depicting similar elements of conduct which would direct towards the outcome of substantiated. But he expressed unease the direct towards the outcome of substantiated. But he expressed unease the outcome was being based on the interactions with those three pupils. outcome was being based on the interactions with those three pupils. He He asked that if anything came to light in the course of the internal investigation asked that if anything came to light in the course of the internal investigation that could prove impactive to the initial outcome, the professionals are that could prove impactive to the initial outcome, the professionals are proactive and reconvene to reconsider the information and finalise proactive and reconvene to reconsider the information and finalise an an appropriate outcome. appropriate outcome. 100 100.So.So despitedespite somesome misgivings Ms Devonish misgivings Ms Devonish found on the information available found on the information available that the initial concern raised by the parents, confirmed by the child, and the that the initial concern raised by the parents, confirmed by the child, and the account of two further children in the classaccount of two further children in the class, an, andd taking into accounttaking into account the views the views expressed by the other professionals at the strategy meeting,expressed by the other professionals at the strategy meeting, confirmed on confirmed on the balance of probabilities the outcome was substantiated. the balance of probabilities the outcome was substantiated. It was It was saidsaid the the views allegedly expressed by the claimant could potentially mean she poseviews allegedly expressed by the claimant could potentially mean she posedd a risk to childrena risk to children.. The process was concluded and was to be passed back to The process was concluded and was to be passed back to the school to undertake an investigationthe school to undertake an investigation. It was recorded: “. It was recorded: “The determination The determination of substantiated was made by the majority of the group, it was accepted that of substantiated was made by the majority of the group, it was accepted that all members would have preferred to hear all members would have preferred to hear MsMs BByfield's explanation of events, yfield's explanation of events, however however MsMs BByfield was off sick and had not engaged withyfield was off sick and had not engaged with InnesInnes even to be even to be advised that a concern had been raisedadvised that a concern had been raised. It was agreed that if the disciplinary . It was agreed that if the disciplinary investigation brought to light new information a review investigation brought to light new information a review professional strategy professional strategy meeting could take place under these procedures.meeting could take place under these procedures.”” 101. In safeguarding terms t 101. In safeguarding terms the outcome of substantiatedhe outcome of substantiated simplysimply means means ““there is there is sufficient evidence to prove the allegationsufficient evidence to prove the allegation”; it is not an actual finding”; it is not an actual finding.. The The other options are other options are unsubstantiated, unfounded, or malicious.unsubstantiated, unfounded, or malicious. 102. 102. Ms Ms Devonish told us in evidence that this was the first situation she Devonish told us in evidence that this was the first situation she had dealt with where there was no account from the had dealt with where there was no account from the subject of the complaint. subject of the complaint. Case No: 1601026/2022 29 She said that her initial starting point had been that the She said that her initial starting point had been that the allegations may be allegations may be unsubstantiated because they did not have the claimant’s accountunsubstantiated because they did not have the claimant’s account. She said . She said that she listened to the views of others and eventually decided that she listened to the views of others and eventually decided on an outcome on an outcome of substantiated as there was some corroboration from some of the other of substantiated as there was some corroboration from some of the other pupils spokepupils spoken to. n to. She said the decision of substantiated was ultimately hers. She said the decision of substantiated was ultimately hers. She was the She was the DOS and we accept she understood her responsibilities and we DOS and we accept she understood her responsibilities and we accept her evidence in this regard. accept her evidence in this regard. Potential for further meeting with the Claimant Potential for further meeting with the Claimant 103. 103. On 20 October 2021 3R emailed the claimant [112] saying the part On 20 October 2021 3R emailed the claimant [112] saying the part 5 5 meeting had taken place the day before and the outcome was the allegations meeting had taken place the day before and the outcome was the allegations were substantiatedwere substantiated. He said. He said:: ““This was bearing in mind your refusal to attend This was bearing in mind your refusal to attend any meetings and your subsequent ilany meetings and your subsequent illness which let there to be no input from lness which let there to be no input from yourself. I have gained agreement from the chair of the panel should you wish yourself. I have gained agreement from the chair of the panel should you wish to participate in a preliminary meeting (which is not the investigation meeting), to participate in a preliminary meeting (which is not the investigation meeting), consideration would be given to reconvening the part 5consideration would be given to reconvening the part 5 meeting to discuss meeting to discuss your evidence as further informationyour evidence as further information.” .” The claimant was offered a meeting The claimant was offered a meeting with Ms Prosserwith Ms Prosser, with 3R commenting that , with 3R commenting that Ms ProsserMs Prosser had done a preliminary had done a preliminary meeting with pupils.meeting with pupils. 104. 104. Mr Adkins responded [116] Mr Adkins responded [116] by accusing 3R of by accusing 3R of ambushing female ambushing female members of staff and NASUWT membersmembers of staff and NASUWT members. . Mr AdkinsMr Adkins disputed that the disputed that the claimant had claimant had refused to attend meetingsrefused to attend meetings. . 105. 105. On 21 October 2021 a meeting took place between Ms Ballantine, 3R, On 21 October 2021 a meeting took place between Ms Ballantine, 3R, Mr Redrup and Ms ForteMr Redrup and Ms Forte under paragraphs 82 and 83 of the disciplinary under paragraphs 82 and 83 of the disciplinary procedure [339]procedure [339] which governs allegations relating to child protection issues which governs allegations relating to child protection issues where the statutory authorities have completed their consideration. The where the statutory authorities have completed their consideration. The options available were:options available were:• Whether the allegation is of a Whether the allegation is of a child protection nature and the child protection nature and the behaviour constitutes gross misconduct which requires it to be behaviour constitutes gross misconduct which requires it to be independently investigated prior to any disciplinary hearing;independently investigated prior to any disciplinary hearing;• Whether there is evidence of misconduct which should be Whether there is evidence of misconduct which should be treated as lesser misconduct;treated as lesser misconduct;• Whether no fuWhether no further action is required. rther action is required. There is a statutory requirement for to the governing body to refer child There is a statutory requirement for to the governing body to refer child protection allegations for independent investigationprotection allegations for independent investigation.. 106. 106. The decision was reached that the allegation was one of a child The decision was reached that the allegation was one of a child protection nature and protection nature and had the potential to amount to gross misconduct and had the potential to amount to gross misconduct and therefore should be remitted for an independent investigationtherefore should be remitted for an independent investigation [117][117].. 107. 107. On 22 October the claimant emailed 3R again On 22 October the claimant emailed 3R again setting out her version of setting out her version of events and events and asserting that she had never refused to attend a meeting with 3Rasserting that she had never refused to attend a meeting with 3R but had asked for clarification as to what the meeting was aboutbut had asked for clarification as to what the meeting was about and that she and that she wawas not able to give an input ws not able to give an input when she did not know what the allegations hen she did not know what the allegations were. were. She said she was happy to meet with Ms Prosser She said she was happy to meet with Ms Prosser by video conference by video conference [123]. [123]. Case No: 1601026/2022 30 108. 108. 3R responded to the claimant on 3 November [128] 3R responded to the claimant on 3 November [128] to say that he did to say that he did not agree with her version of events but it could be discussed at a later date. not agree with her version of events but it could be discussed at a later date. He said Ms Prosser could meet that weekHe said Ms Prosser could meet that week andand:: ““The purpose of the meeting is The purpose of the meeting is simply to state that an allegation has been made and to give you an simply to state that an allegation has been made and to give you an opportunity to respond to this. It is not part of an investigation but is the opportunity to respond to this. It is not part of an investigation but is the process that would normally take place when a member of staff agrees to process that would normally take place when a member of staff agrees to meetmeet.” .” Ms Prosser Ms Prosser set up a meeting. set up a meeting. Mr Adkins asked again for further Mr Adkins asked again for further information to be giveninformation to be given,, pointing opointing out that ut that the preliminary meeting was said to the preliminary meeting was said to be an opportunity for the claimant to put her point acrossbe an opportunity for the claimant to put her point across,, but she could not but she could not do so if she was given no information [126]. do so if she was given no information [126]. 109. 109. On On 4 November 3R emailed the claimant and Mr Adkins saying4 November 3R emailed the claimant and Mr Adkins saying [129][129]: “I : “I must inform you that I am following the advice of the Vale Safeguarding team must inform you that I am following the advice of the Vale Safeguarding team as to what can be discussed in the meeting on Friday. As explained in the as to what can be discussed in the meeting on Friday. As explained in the previous eprevious e--mail the purpose of the meeting is simply to state that an allegation mail the purpose of the meeting is simply to state that an allegation has been made and to givhas been made and to give you an opportunity to respond to this. It is not part e you an opportunity to respond to this. It is not part of an investigation but is the process that would normally take place when a of an investigation but is the process that would normally take place when a member of staff agrees to meet. member of staff agrees to meet. The next paThe next parrt of the process is an investigation that will be carried out by an t of the process is an investigation that will be carried out by an external agency. At that stage of the process, you will be given full details of external agency. At that stage of the process, you will be given full details of the complaint as per the process detailed by HR in the the complaint as per the process detailed by HR in the Vale.Vale.”” 110. 110. The meeting therefore did not take plaThe meeting therefore did not take place as the claimant could see no ce as the claimant could see no point in attending when she would not be given any further details of the point in attending when she would not be given any further details of the allegationallegation [132][132].. Mr Adkins pointed out that almost 4 weeks had passedMr Adkins pointed out that almost 4 weeks had passed,, and and the claimant still was not aware of the exact nature of the allegationthe claimant still was not aware of the exact nature of the allegation,, and it and it was causing her considerable stress and anxiety. was causing her considerable stress and anxiety. 111. 111. On 8 November 2021 Mr Adkins emailed Ms Devonish On 8 November 2021 Mr Adkins emailed Ms Devonish saying 3R had saying 3R had reneged on a commitmentreneged on a commitment that would allow the claimant to give her side of the that would allow the claimant to give her side of the story on direction from story on direction from Ms DevonishMs Devonish. He said if that was correct then it was . He said if that was correct then it was overreaching on Ms Devonish’s part to dictate employment matters, overreaching on Ms Devonish’s part to dictate employment matters, that the that the safeguarding procedures allowed some information safeguarding procedures allowed some information to be given, and it was to be given, and it was absolutely perverse for absolutely perverse for Ms DevonishMs Devonish to seek to direct the school in the way to seek to direct the school in the way she had done. she had done. Mr Adkins Mr Adkins said that the only basis on which to deny the detail said that the only basis on which to deny the detail is that is that Ms Devonish must believe that the claimant would in some way harm Ms Devonish must believe that the claimant would in some way harm the pthe pupil and that, if so, it was an appalling suggestionupil and that, if so, it was an appalling suggestion. He indicated that they . He indicated that they may challenge the “defamatory assertion” [133]. may challenge the “defamatory assertion” [133]. Mr AdkinsMr Adkins asked asked Ms Ms Devonish toDevonish to tell the school that they may disclose details to the claimant.tell the school that they may disclose details to the claimant. Ms Ms Devonish emailed Ms DickDevonish emailed Ms Dickininson [134] son [134] saying she was really unhappy with the saying she was really unhappy with the way she had been accused and that she found the tone of the email way she had been accused and that she found the tone of the email aggressive and it was a wholly inaccurate portrayal of what had taken place. aggressive and it was a wholly inaccurate portrayal of what had taken place. Ms DevonishMs Devonish said she was not happysaid she was not happy to respond to the email in its current to respond to the email in its current format.format. On 15 November 2021 Mr Adkins chased Ms Devonish for a response On 15 November 2021 Mr Adkins chased Ms Devonish for a response [135]. [135]. 112. 112. On 16 November 2021 Ms Devonish emailed On 16 November 2021 Ms Devonish emailed 3R saying she had 3R saying she had spoken with Ms James that day spoken with Ms James that day who had advised that as the who had advised that as the professional professional strategy meeting had happened and they hstrategy meeting had happened and they hadad reached an outcome, any reached an outcome, any meeting with the claimant would need to be part of the schools disciplinary meeting with the claimant would need to be part of the schools disciplinary investigationinvestigation as opposed to a safeguarding preliminary enquiryas opposed to a safeguarding preliminary enquiry. Ms Devonish . Ms Devonish said that said that as agreed in as agreed in the professional strategy meeting, if after that has the professional strategy meeting, if after that has Case No: 1601026/2022 31 occurred, there was information with the potential occurred, there was information with the potential to produce a different to produce a different outcome, then a follow up part 5 meeting could be arrangedoutcome, then a follow up part 5 meeting could be arranged. She said: “. She said: “hope hope that makes sense and sorry for the confusion.”that makes sense and sorry for the confusion.” Ms Ms DevonishDevonish also told also told 3R3R that that as usual practice she would be writing to the claimant that week “as usual practice she would be writing to the claimant that week “to advise to advise that a professional strategy meeting was convened under part that a professional strategy meeting was convened under part 55 of the Wales of the Wales SSafeguarding afeguarding PProcedures due to concerns raised by a rocedures due to concerns raised by a PPupil that during a upil that during a lessolesson she conveyed personal views that were racist, homophobic and n she conveyed personal views that were racist, homophobic and undermined confidence in the undermined confidence in the PPolice. And that as a group of professionals on olice. And that as a group of professionals on the information we had available to us the concern was substantiatedthe information we had available to us the concern was substantiated, , furthermore it was considered that she does pofurthermore it was considered that she does potentially present a risk to tentially present a risk to children which will now be considered through the schoolchildren which will now be considered through the school’s own disciplinary ’s own disciplinary procedures.”procedures.” 113. 113. We consider it likely, and find, that 3R left theWe consider it likely, and find, that 3R left the strategystrategy meeting with meeting with a a genuine belief that they couldgenuine belief that they could, in short order, arrange a meeting with the , in short order, arrange a meeting with the claimant at which the claimant may be able to give further information, and claimant at which the claimant may be able to give further information, and that the that the Part 5 meeting could bePart 5 meeting could be promptlypromptly reconvened potentially with a reconvened potentially with a different outcome.different outcome. In effect that there could be In effect that there could be some form of psome form of preliminary reliminary enquiry.enquiry. ThatThat was not ultimately possible was not ultimately possible because because Ms JamesMs James said said there there hadhad alreadyalready been an outcomebeen an outcome at the professional strategy meeting. As we at the professional strategy meeting. As we understand itunderstand it,, Ms JamesMs James was, in effect, saying there could not be further was, in effect, saying there could not be further preliminary enquiries preliminary enquiries to inform the Part 5 safeguarding process decision to inform the Part 5 safeguarding process decision making because themaking because the outcomeoutcome decision had already been made. decision had already been made. If further If further information was to be obtained it should information was to be obtained it should therefore therefore be via the be via the disciplinary disciplinary investigation. investigation. ThThe fact thate fact that Ms Devonish checked this with Ms JamesMs Devonish checked this with Ms James,, and and then wrote to 3R apologising for the confusion tends to suggest then wrote to 3R apologising for the confusion tends to suggest it is likelyit is likely there was genuine there was genuine misunderstandingmisunderstanding at the timeat the time as to what could happenas to what could happen. It. It demonstrates 3R demonstrates 3R didid originally genuinely believe it was an optiond originally genuinely believe it was an option and one that and one that he was genuinely trying to take forwardhe was genuinely trying to take forward. . 114. 114. We also find that We also find that 3R genuinely 3R genuinely believed that the position remained that believed that the position remained that the claimant could not be given any details beyond the claimant could not be given any details beyond that already given. We that already given. We have already found that this was not what Ms Devonish had in mindhave already found that this was not what Ms Devonish had in mind and that and that there was already in existence a misunderstanding between telling there was already in existence a misunderstanding between telling the the claimant that the complaint arose out of a lesson as against telling her the claimant that the complaint arose out of a lesson as against telling her the specific lesson or lessons that specific lesson or lessons that the complaintthe complaint related to. related to. We find it is likely that We find it is likely that this misunderstanding remained in placthis misunderstanding remained in place and led to 3R believing that e and led to 3R believing that becausebecause it was a meetiit was a meeting that was part of the safeguarding processng that was part of the safeguarding process (rather than being (rather than being part of the disciplinary process)part of the disciplinary process) the same restrictions would remain in place. the same restrictions would remain in place. It It led to 3R telling the claimant and Mr Adkins what he did and that the led to 3R telling the claimant and Mr Adkins what he did and that the restrictions came from safeguarding. restrictions came from safeguarding. The The disciplinary investigation invite letter disciplinary investigation invite letter 115. 115. On 24 November 2021 Ms Forte On 24 November 2021 Ms Forte wrote to the claimant [137]. The letter wrote to the claimant [137]. The letter saidsaid:: “As you “As you are aware, a parentalare aware, a parental complaintcomplaint was received raising concerns about was received raising concerns about the content of one of your lessonsthe content of one of your lessons.. UUnfortunately, nfortunately, the Governingthe Governing BBody until ody until now has only been able to share now has only been able to share limitedlimited information with you due to the information with you due to the nature of the issuesnature of the issues,, whichwhich were referred to thewere referred to the CCouncouncil’sil’s SSafeguarding afeguarding OOfficer. A professional strategy meeting was considered necessary. This has fficer. A professional strategy meeting was considered necessary. This has Case No: 1601026/2022 32 now taken place and you will receive separate correspondence in relation to now taken place and you will receive separate correspondence in relation to thisthis.. This process This process havinghaving coconcluded, ncluded, the Gthe Governing overning BBody is of the opinion that it is ody is of the opinion that it is necessary to consider the concerns furthernecessary to consider the concerns further under itsunder its procedures. procedures. The mThe matters atters will need to be investigated under the will need to be investigated under the SSchoolchool’’s disciplinary processs disciplinary processeses because the allegationsbecause the allegations,, ifif true, potentially would amount to true, potentially would amount to mismisconduct conduct and/orand/or grogross misconductss misconduct.. The cThe concerns raised allege that you had conveyed personal views to students oncerns raised allege that you had conveyed personal views to students wwhenhen conducting a lesson in your capacity as a teacher which were racist, conducting a lesson in your capacity as a teacher which were racist, hhomophobic, andomophobic, and undermined confidence in the undermined confidence in the PPolice. olice. The Governing BodyThe Governing Body is is of the view that, if these allegations are proven, your actions may of the view that, if these allegations are proven, your actions may amount to amount to misconduct ormisconduct or gross misconduct.gross misconduct. The pThe particular areas of concern identified aarticular areas of concern identified arere thatthat::[1]yyou conveyedou conveyed personal views in personal views in aa lesson that were racistlesson that were racist,, homophobic homophobic andand underminedundermined confidence in the policeconfidence in the police;;[2]inin stating stating thesethese views in views in aa lesson, lesson, youyou breached the Equality Act breached the Equality Act and and behavbehaved in a ed in a discriminatory discriminatory manner;manner;[3]your views and your conduct in relation to these events were in breach your views and your conduct in relation to these events were in breach of safeguarding;of safeguarding;[4]you have failed to behave professionally in accordance with your role you have failed to behave professionally in accordance with your role as a teacher;as a teacher;[5]you have you have brought the School and the Governing Body’s reputation into brought the School and the Governing Body’s reputation into disrepute;disrepute;[6]you have breached the Education Workforce’s Code of Conduct.”you have breached the Education Workforce’s Code of Conduct.” 116. 116. The The cclaimant was told Nerisslaimant was told Nerissaa Williams from Blue Turtle ConsultancyWilliams from Blue Turtle Consultancy would be conducting the would be conducting the investigationinvestigation and and the claimantthe claimant would be contacted would be contacted shortly to arrange a meeting to be given the opportunity to comment and shortly to arrange a meeting to be given the opportunity to comment and provide a statement to the investigating officerprovide a statement to the investigating officer. . 117. 117. Ms Forte told us, and we accept, that Ms Forte told us, and we accept, that draft letter had been prepared draft letter had been prepared within 2R’s legal team.within 2R’s legal team. We did not hear evidence from the original drafter. It We did not hear evidence from the original drafter. It seems likely to us given seems likely to us given the almost identical phraseologythe almost identical phraseology, that the drafter took , that the drafter took the wording of the allegation from the wording of the allegation from Ms Devonish’s email of 16 November 20Ms Devonish’s email of 16 November 2021. 21. Ms Forte had not seeMs Forte had not seen that email and we accept that n that email and we accept that Ms ForteMs Forte did not know did not know the origins of the the origins of the wordingwording adopted. adopted. Ms Forte’sMs Forte’s evidence was that she evidence was that she considered the draft wording to be an accurate summary of the allegations considered the draft wording to be an accurate summary of the allegations and therefore she approved it. and therefore she approved it. Ms Forte said Ms Forte said to us in evidence that it was not to us in evidence that it was not her intent to allege that the claimant was racist, but that the claimant had her intent to allege that the claimant was racist, but that the claimant had expressed personal views that were racist in theexpressed personal views that were racist in the lesson in question. Ms Forte lesson in question. Ms Forte said she saw that as an accurate portrayal of what the parental comsaid she saw that as an accurate portrayal of what the parental complaint plaint email was saying. Ms Forte said the letter was drafted on the basis of the email was saying. Ms Forte said the letter was drafted on the basis of the parental complaint email and advice from the legal department. It was put to parental complaint email and advice from the legal department. It was put to Ms Forte in cross examination that the parental email did not describe the Ms Forte in cross examination that the parental email did not describe the Case No: 1601026/2022 33 claimant’s comments as claimant’s comments as being racist. Ms Forte said that the very fact the N being racist. Ms Forte said that the very fact the N word was in there made the reading of the complaint as being an allegation word was in there made the reading of the complaint as being an allegation that personal views that were racist had been used. that personal views that were racist had been used. 118. 118. The letterThe letter itselfitself did not give the claimant the specifics of did not give the claimant the specifics of the personal the personal views it was said she had conveyed that were racist, homophobic and views it was said she had conveyed that were racist, homophobic and undermined confidence in the police. It also did not identify the undermined confidence in the police. It also did not identify the lesson or lesson or lessons in which it was alleged she had conveyed such lessons in which it was alleged she had conveyed such views.views. 119. 119. On 24 November 2021 Mr Adkins emailed Ms Dickinson asking, in the On 24 November 2021 Mr Adkins emailed Ms Dickinson asking, in the absence of a response from Ms Devonish, that absence of a response from Ms Devonish, that she ask Mrs Prosser to detail she ask Mrs Prosser to detail the safeguarding concerns to the claimant to allow the claimant to give her the safeguarding concerns to the claimant to allow the claimant to give her side of the story side of the story [605]. On 25 November 2021 Ms Dickinson respond[605]. On 25 November 2021 Ms Dickinson respondeded to say to say that the claimant had been offered the opportunity of the meeting with Mrs that the claimant had been offered the opportunity of the meeting with Mrs Prosser on 5 November and the meeting was intended to discuss the matter Prosser on 5 November and the meeting was intended to discuss the matter in more detail with the claimantin more detail with the claimant. She said that whi. She said that whilst it was not the lst it was not the recommendation of the safeguarding strategy group, the group had agreed recommendation of the safeguarding strategy group, the group had agreed with 3R that once the meeting took place they would recall the strategy with 3R that once the meeting took place they would recall the strategy meetinmeeting to ensure the claimant’s position was put forward. She said that in g to ensure the claimant’s position was put forward. She said that in the absence of ththe absence of the meeting the internal investigation process had now e meeting the internal investigation process had now commencedcommenced. She said the outcome of that investigation would now be . She said the outcome of that investigation would now be referred back to the safeguarding strategy group once concluded [605]. referred back to the safeguarding strategy group once concluded [605]. Mr Mr Adkins responded to say that what Ms Dickinson had been adviAdkins responded to say that what Ms Dickinson had been advised was not sed was not truetrue. He sent a further email [602. He sent a further email [602--603] setting out the claimant’s version of 603] setting out the claimant’s version of events. events. In essence he said that the claimant was not being afforded the In essence he said that the claimant was not being afforded the opportunity to present her position opportunity to present her position as she would be given no further details of as she would be given no further details of the allegation. the allegation. 120. 120. On On 3 December 2021 Mr Adkins emailed Ms James [142]3 December 2021 Mr Adkins emailed Ms James [142]. He said Ms . He said Ms Devonish had gone into maDevonish had gone into matters outside of the remit of the Wales tters outside of the remit of the Wales Safeguarding Procedures, Safeguarding Procedures, that social services departments were setting that social services departments were setting themselves up as “commissars” into the overall conduct of teachersthemselves up as “commissars” into the overall conduct of teachers when it when it was none of their concern, and that the findings of the strategy meeting were was none of their concern, and that the findings of the strategy meeting were a nullity. a nullity. He said it was evidence of 3R abusing the safeguarding procedures He said it was evidence of 3R abusing the safeguarding procedures to continue his victimisation of NASUWT members to continue his victimisation of NASUWT members and that was a and that was a safeguarding matter in its owsafeguarding matter in its own right. Mr Adkins said:n right. Mr Adkins said: ““if the service maintains that the matterif the service maintains that the matterss considered fconsidered faall within the remit ll within the remit of the safeguarding then I believe the formulations which substantiated of the safeguarding then I believe the formulations which substantiated the allegations which informs the contents of the disciplinary letter the allegations which informs the contents of the disciplinary letter areare in turn:in turn:• The belief that discussion of The belief that discussion of BBlack peopleslack peoples’’ experiencexperience ofe of racism as expressed by racism as expressed by BBlack lack LLives ives MMatter and other atter and other organisations is racist is itself racistorganisations is racist is itself racist;;• the belief that discussion of women's fears for their safety the belief that discussion of women's fears for their safety following the murder of Sarah following the murder of Sarah EEverard verard by a police officer is by a police officer is discriminatory is itself discriminatory;discriminatory is itself discriminatory;• The The beliefbelief that discussion ofthat discussion of aa selfself--identifying womidentifying womaan n participating in the participating in the OOlympics is lympics is homophobic is itself homophobic is itself transphobic;transphobic;• ThThe belief thate belief that discussion of these matters undermines the discussion of these matters undermines the police is symptomatic of a state of denial which can only be police is symptomatic of a state of denial which can only be Case No: 1601026/2022 34 informed by those who are in turn racist, sexist informed by those who are in turn racist, sexist and and transphobic.”transphobic.” 121. 121. Mr Adkins said he was therefore referring the professionals and police Mr Adkins said he was therefore referring the professionals and police who parwho participated in the findings against the claimant ticipated in the findings against the claimant to safeguarding and that to safeguarding and that Ms James was bound to convene a Part 5 strategy meetMs James was bound to convene a Part 5 strategy meeting ing against them against them as as otherwise Ms James would compound the discriminatory and racist treatment otherwise Ms James would compound the discriminatory and racist treatment that the claimant had suffered at that the claimant had suffered at the hands of Ms James’ servicethe hands of Ms James’ service. . The detail The detail that the claimant had been given therefore had allowed her to make an that the claimant had been given therefore had allowed her to make an educated guess as to what the allegationseducated guess as to what the allegations maymay relate to. relate to. Initial efforts to arrange a disciplinary investigation meeting Initial efforts to arrange a disciplinary investigation meeting 122. 122. On 3 On 3 December 2021 Nerissa Williams wrote to the claimant [144]December 2021 Nerissa Williams wrote to the claimant [144] inviting the claimant to an interview on 15 December 2021inviting the claimant to an interview on 15 December 2021 onon TeamsTeams. Ms N . Ms N Williams saidWilliams said if the date was not convenient she if the date was not convenient she couldcould arrange a date in the arrange a date in the New Year (as Christmas holidays were then due tNew Year (as Christmas holidays were then due to the start). No further o the start). No further details were given as to the specific allegations. details were given as to the specific allegations. 123. 123. On 6 December 2021 Ms Dickinson emailed Mr Adkins On 6 December 2021 Ms Dickinson emailed Mr Adkins saying that as saying that as the matter had now been referred to an independent investigation the the matter had now been referred to an independent investigation the claimant would have opportunity to discclaimant would have opportunity to discuss uss her points with the investigator.her points with the investigator. 124. 124. On 7 December 2021 the claimant emailed MsOn 7 December 2021 the claimant emailed Ms NN Williams to say she Williams to say she was not available on 15 December and so would like to take up the offer of was not available on 15 December and so would like to take up the offer of arranging a meeting in the arranging a meeting in the new year [146]. new year [146]. 125. 125. A date of 5 January 2022 was then agreed [151]. Mr Adkins A date of 5 January 2022 was then agreed [151]. Mr Adkins said that said that they required disclosure of all documents that Ms N Williams intended to rely they required disclosure of all documents that Ms N Williams intended to rely on to conduct the interview, the parental letter, on to conduct the interview, the parental letter, and the interviews with pupils and the interviews with pupils [149].[149]. 126. 126. On 8 December 2021 Ms Devonish wrote to the claimant [726] On 8 December 2021 Ms Devonish wrote to the claimant [726] sayingsaying: : “I am w“I am writing to confirm the outcome of a Professional Strategy Meeting held riting to confirm the outcome of a Professional Strategy Meeting held under the above procedures in relation to a concern raised that it was alleged under the above procedures in relation to a concern raised that it was alleged during a lesson you gave personal views that were considered racist, during a lesson you gave personal views that were considered racist, homophobic, and likely to undermine puhomophobic, and likely to undermine public confidence in the Policeblic confidence in the Police.”.” The The letter said the strategy meeting concluded that on the information available letter said the strategy meeting concluded that on the information available the concerns were substantiated. The letter said the process was now the concerns were substantiated. The letter said the process was now concluded at the School/Governing body would be undertaking their own concluded at the School/Governing body would be undertaking their own internal process.internal process. 127. 127. On 10 DecemOn 10 December 2022 ber 2022 Ms N Williams responded to Mr Adkins saying Ms N Williams responded to Mr Adkins saying he would have to revert to the Chair of Governors to request any documents he would have to revert to the Chair of Governors to request any documents as her remit was only to investigate the allegations in the letter sent to the as her remit was only to investigate the allegations in the letter sent to the claimant. She said she could give the claimant soclaimant. She said she could give the claimant some outline questions to me outline questions to prepare for interview and would be able to put some specific detail in there for prepare for interview and would be able to put some specific detail in there for the claimant. Ms N Williams said she would be able to get the sample the claimant. Ms N Williams said she would be able to get the sample questions out before the end of term.questions out before the end of term. 128. 128. On or around the 10 December 2022 the On or around the 10 December 2022 the NASUWT raised a collective NASUWT raised a collective grievance for 3 teachers including the grievance for 3 teachers including the cclaimant [140laimant [140--141]141] against 3R. He was against 3R. He was accused of predatory targeting of specifically NASUWT staff at the top of their accused of predatory targeting of specifically NASUWT staff at the top of their Case No: 1601026/2022 35 scale. scale. It was It was alleged that 3R had entrapped women into meetings with serious alleged that 3R had entrapped women into meetings with serious professional ramifications, without following due process.professional ramifications, without following due process. It was said that 3RIt was said that 3R had targeted had targeted these NASUWT female members by deliberately escalating the these NASUWT female members by deliberately escalating the severity oseverity of allegations against them whilst intentionally def allegations against them whilst intentionally de--escalating serious escalating serious sexual allegations sexual allegations made against 3 non NASUWT staff members. made against 3 non NASUWT staff members. There was There was no mention of a race discriminatino mention of a race discrimination complainton complaint in respect of the claimant. in respect of the claimant. 129. 129. Mr Adkins Mr Adkins responded to Ms N Williams to sayresponded to Ms N Williams to say:: ““You should also be You should also be aware that this is the modus operandi of Mr I Robinson, Head of School for aware that this is the modus operandi of Mr I Robinson, Head of School for WHS.WHS. He seeks a meeting with the member of staff concerned He seeks a meeting with the member of staff concerned without giving without giving reasons for the meeting let alone details of any allegations and then escalates reasons for the meeting let alone details of any allegations and then escalates the nature of the complaint by referring the matter to safeguarding where he the nature of the complaint by referring the matter to safeguarding where he details what was allegedly saiddetails what was allegedly said.” .” Mr AdkinsMr Adkins referred to the three female referred to the three female members of staff filing a grievancemembers of staff filing a grievance. He questioned . He questioned how Mshow Ms NN Williams could Williams could investigate without evidence from the parents and pinvestigate without evidence from the parents and pupil statements. He said upil statements. He said the case was likely to end in litigation and if she continued to the case was likely to end in litigation and if she continued to conduct thconduct the e interview in the absence of the documents Mr Adkins would add her interview in the absence of the documents Mr Adkins would add her personally as a copersonally as a co--respondent to the discriminatory treatment the claimant respondent to the discriminatory treatment the claimant was receiving [153]. was receiving [153]. 130. 130. Ms Williams responded to say that the email had been forwarded on to Ms Williams responded to say that the email had been forwarded on to Ms Forte [154]. Ms Forte [154]. 131. 131. On 14 December 2021 the claimant had aOn 14 December 2021 the claimant had ann occupational health occupational health appointment [669]. appointment [669]. A letter was produced addressed to a Jo Hale, Assistant A letter was produced addressed to a Jo Hale, Assistant HR Business Partner. For reasons unknown, there is no evidence that this HR Business Partner. For reasons unknown, there is no evidence that this report was passed onto anyone in the report was passed onto anyone in the school. We accept Dr Browne’s school. We accept Dr Browne’s evidence that he could not recall seeing the report. We accept that 3R also evidence that he could not recall seeing the report. We accept that 3R also would not have received it as he had by then stepped out of dealing with the would not have received it as he had by then stepped out of dealing with the claimantclaimant’s case’s case. . The report saidThe report said:: ““Stephanie had not been given the detaiStephanie had not been given the details of ls of the allegation and was initially given opportunity to fully discuss and the allegation and was initially given opportunity to fully discuss and understand the case against her and this has been a major contributing factor understand the case against her and this has been a major contributing factor to the stress and anxiety she had experienced in the past few months. to the stress and anxiety she had experienced in the past few months. Stephanie was not made aware tStephanie was not made aware that she had been accused of making racist hat she had been accused of making racist and homophobic comments until she received a letter from the Chair of and homophobic comments until she received a letter from the Chair of Governors, on Friday 25Governors, on Friday 25thth November.” November.” TheThe OHOH letter said the whole situation letter said the whole situation had caused the claimant a great deal of anxiety, resulting in the GPhad caused the claimant a great deal of anxiety, resulting in the GP prescribing anxiolytics and hypnotics and the claimant had suffered a prescribing anxiolytics and hypnotics and the claimant had suffered a recurrence of severe headache/migraine which have been exacerbated by recurrence of severe headache/migraine which have been exacerbated by her anxietyher anxiety. The letter said there is no doubt the claimant is extremely . The letter said there is no doubt the claimant is extremely stressed about the situation at the schoolstressed about the situation at the school, and , and is upset she feels she has not is upset she feels she has not been treated fairly and the school has not followed the correct safeguarding been treated fairly and the school has not followed the correct safeguarding guidelines towards her. The doctor said this had added yet morguidelines towards her. The doctor said this had added yet moree stress to stress to anan already stressful situationalready stressful situation. The doctor said the claimant was unf. The doctor said the claimant was unfit to return to it to return to work and unfit to attend any meetings. He said it was hopeful medication work and unfit to attend any meetings. He said it was hopeful medication would eventually help the claimant to control her anxiety more successfulwould eventually help the claimant to control her anxiety more successfullyly and she would be able to attend meetings accompanied by her TU and she would be able to attend meetings accompanied by her TU representative.representative. The OH doctoThe OH doctorr said he would review the claimant in January.said he would review the claimant in January. 132. 132. The investigation meeting originally arranged for 5 January 2022 did The investigation meeting originally arranged for 5 January 2022 did not take place. not take place. On 7 January 2022 the Claimant was signed off work for a On 7 January 2022 the Claimant was signed off work for a further 6 weeks with “Acute reaction to stress”further 6 weeks with “Acute reaction to stress” [155]. [155]. Case No: 1601026/2022 36 133. 133. On 8 January 2022 Ms Forte wrote to Mr Adkins [158On 8 January 2022 Ms Forte wrote to Mr Adkins [158--159]. 159]. She said She said the terms of reference for Ms N Williams to investigate were the terms of reference for Ms N Williams to investigate were as set out in the as set out in the letter to the claimant of 23 November 2022. Ms Forte said Ms N Williams had letter to the claimant of 23 November 2022. Ms Forte said Ms N Williams had sight of the parental complaisight of the parental complaint and wnt and wouldould be able to give the claimant further be able to give the claimant further information as part of the investigation process. information as part of the investigation process. Ms Forte said: “Ms Forte said: “The parental The parental letter of complaint has not been given to Ms Byfield or you because the parent letter of complaint has not been given to Ms Byfield or you because the parent expressly asked for this not to be expressly asked for this not to be shared, and, having taken advice on how shared, and, having taken advice on how best to deal with this aspect, and being mindful of the Governing Body’s best to deal with this aspect, and being mindful of the Governing Body’s obligations to Ms Byfield, the pupil and parents, I wish to respect this request obligations to Ms Byfield, the pupil and parents, I wish to respect this request for anonymity.”for anonymity.” 134. 134. Ms Forte went on to say: “Ms Forte went on to say: “The intentionThe intention is to furnish Ms Byfieldis to furnish Ms Byfield with as with as much information as possible so that she knows what the allegations are much information as possible so that she knows what the allegations are without compromising the parents’ wishes, which I have tried to do in my letter without compromising the parents’ wishes, which I have tried to do in my letter of 23of 23rdrd November. We are not required to provide the letter to Ms Byfield November. We are not required to provide the letter to Ms Byfield providing she knows the nature of the allegations against her, (which she providing she knows the nature of the allegations against her, (which she does). As we both know this is a difficult balancing act. I have asked Ms does). As we both know this is a difficult balancing act. I have asked Ms Williams to prepare her questions for Ms Williams to prepare her questions for Ms Byfield and for these to be sent to Byfield and for these to be sent to you as soon as possible, as this should assist Ms Byfield in having as much you as soon as possible, as this should assist Ms Byfield in having as much information as possible when meeting with Ms Williams as part of the information as possible when meeting with Ms Williams as part of the investigation process.”investigation process.” Ms Forte said that Ms Willams did not have any Ms Forte said that Ms Willams did not have any papepaperwork from the safeguarding procerwork from the safeguarding process and would conduct her ss and would conduct her investigation separately from that process, including obtaining information investigation separately from that process, including obtaining information independently from pupilsindependently from pupils. . 135. 135. On 8 January 2022 Mr Adkins responded to say the matteOn 8 January 2022 Mr Adkins responded to say the matterr should be should be dealt with under the school’s complaints procedure because it had not yet dealt with under the school’s complaints procedure because it had not yet been determined whether they constitute potential disciplinary acts. He said been determined whether they constitute potential disciplinary acts. He said the complainant could not maintain anonymity because they may wish to the complainant could not maintain anonymity because they may wish to counter complacounter complain [156]. in [156]. 136. 136. On 11 January 2022 Mr Adkins wrote to Ms Forte to say he had taken On 11 January 2022 Mr Adkins wrote to Ms Forte to say he had taken advice from the Information Commissioner, and the claimant was entitled to advice from the Information Commissioner, and the claimant was entitled to all evidence on which the allegations are based, including the pupil all evidence on which the allegations are based, including the pupil statements taken by Mrs Prosser and thstatements taken by Mrs Prosser and the parental complaint with the name of e parental complaint with the name of the complainant and other identifying features redacted [160].the complainant and other identifying features redacted [160]. 137. 137. On 11 January 2022 Ms N Williams sent through her sample questions On 11 January 2022 Ms N Williams sent through her sample questions for the claimant [161]. for the claimant [161]. Mr Adkins responded to ask what were the comments Mr Adkins responded to ask what were the comments which thwhich the claimant was alleged to have said, and again seeking the pupil e claimant was alleged to have said, and again seeking the pupil statements taken by Mrs Prosser and the parental complaint with names statements taken by Mrs Prosser and the parental complaint with names redacted, in case they wished to counter complain. redacted, in case they wished to counter complain. 138. 138. On 1On 144 January 20January 2022 the claimant sent a letter 22 the claimant sent a letter to Mr Browne, as being to Mr Browne, as being the person considered to be the data controller at the schoolthe person considered to be the data controller at the school, requesting the , requesting the parental complaint and pupil statementsparental complaint and pupil statements [162[162, 165, 165]. The letter suggested the ]. The letter suggested the school may be able to redact certain identifyingschool may be able to redact certain identifying featurefeatures. The letter said she s. The letter said she wished to consider whether the complaint and actions of the school following wished to consider whether the complaint and actions of the school following receipt constitute harassment on the grounds of her ethnic origin for which the receipt constitute harassment on the grounds of her ethnic origin for which the school carries vicarious liability [162]. school carries vicarious liability [162]. Case No: 1601026/2022 37 Request for referral to occupational health under the Burgundy Book Request for referral to occupational health under the Burgundy Book 139. 139. On 24 January 2022 Mr Adkins wrote to Ms ForteOn 24 January 2022 Mr Adkins wrote to Ms Forte [166][166] saying: “saying: “I am I am writing to ask the unit to make a referral to occupational health to determine writing to ask the unit to make a referral to occupational health to determine whether Miss Byfield’s current absewhether Miss Byfield’s current absence from work arises from an accident at nce from work arises from an accident at work under Section 4: Para 9.1 of the Conditions of Service for School work under Section 4: Para 9.1 of the Conditions of Service for School Teachers in England and Wales, more commonly known as the Burgundy Teachers in England and Wales, more commonly known as the Burgundy Book as a result of her being subject to harassment on the grounds of her Book as a result of her being subject to harassment on the grounds of her ethethnic origin by the parental complaint and by the schools subsequent nic origin by the parental complaint and by the schools subsequent prejudicial management of this complaint.”prejudicial management of this complaint.” There was then a list of more There was then a list of more specific complaints specific complaints including the failure to disclosure details of the complaint including the failure to disclosure details of the complaint other than saying one had been other than saying one had been mademade, and inappropriate escalation to , and inappropriate escalation to safeguarding and under the disciplinary procedure. Mr Adkins said safeguarding and under the disciplinary procedure. Mr Adkins said in a in a previous Cardiff case he had agreed set questions to be referred to previous Cardiff case he had agreed set questions to be referred to occupational health and he proposed the questions that should be referredoccupational health and he proposed the questions that should be referred. . ThiThis included whether the claimant suffered an accident, injury or assault as a s included whether the claimant suffered an accident, injury or assault as a result of the alleged treatment as set out in Mr Adkinresult of the alleged treatment as set out in Mr Adkins’s’ email. email. End of January 2022 and February 2022 End of January 2022 and February 2022 140. 140. On 24 January 2022 Mr Adkins wrote to Ms Forte On 24 January 2022 Mr Adkins wrote to Ms Forte [167] [167] saying he saying he wanted to file a complaint against 3R that 3R had harassed the claimant on wanted to file a complaint against 3R that 3R had harassed the claimant on grounds of her ethnic origin and/or gender in respect of grounds of her ethnic origin and/or gender in respect of 3R’s3R’s management management and pursuit of a parental complaint. and pursuit of a parental complaint. Mr AdkiMr Adkins said that if the complaint was ns said that if the complaint was not treated in the same way as the parental complaint against the claimant not treated in the same way as the parental complaint against the claimant ((i.e.i.e. potential gross misconductpotential gross misconduct and a referral to safeguardingand a referral to safeguarding) ) then he would then he would consider this to be a discriminatory act on the part of the school. consider this to be a discriminatory act on the part of the school. On On 22 February 2022February 2022 Ms Forte responded to check Ms Forte responded to check which parental complaint Mr which parental complaint Mr Adkins was referring to [169Adkins was referring to [169 and 171and 171]. ]. On 2 February Mr Adkins confirmed it On 2 February Mr Adkins confirmed it was the same parental was the same parental complaint complaint [170].[170]. 141. 141. On On 1 February 2022 the claimant attended a further occupational 1 February 2022 the claimant attended a further occupational health appointment [168].health appointment [168]. The doctor said that if anything the claimant’s The doctor said that if anything the claimant’s mental health problems had increased since their last discussion. mental health problems had increased since their last discussion. He said the He said the claimant was quite tearful and upset during their consultation and became claimant was quite tearful and upset during their consultation and became very upset discussing any issues related to work. He recvery upset discussing any issues related to work. He recorded the claimant orded the claimant saying she was still awaiting evidence of the complaintsaying she was still awaiting evidence of the complaint. He recorded that the . He recorded that the claimant’s collective grievance had now been forwarded to the Minister of claimant’s collective grievance had now been forwarded to the Minister of Education at the SEducation at the Senedd for their opinion. The doctor said the claimant was enedd for their opinion. The doctor said the claimant was so distreso distressed at that time she was unfit to return to work and unfit to attend ssed at that time she was unfit to return to work and unfit to attend meetings to discuss her absence. He said the grievance procedure needed to meetings to discuss her absence. He said the grievance procedure needed to be completed as soon as possible and that until the investigation was be completed as soon as possible and that until the investigation was complete her mental health would continuecomplete her mental health would continue to deteriorate. to deteriorate. Mr Browne did Mr Browne did receive this report. receive this report. 142. 142. On 1 February 2022 Ms Forte responded to the request for a referral to On 1 February 2022 Ms Forte responded to the request for a referral to occupational health in respect of the injury attestation [607]. Ms Forte said: occupational health in respect of the injury attestation [607]. Ms Forte said: ““As I am sure you will appreciate, I will have to take advice before responding As I am sure you will appreciate, I will have to take advice before responding fully, but will do so as soon as I am able.” fully, but will do so as soon as I am able.” 143. 143. On 2 February 2022 Mr Adkins wrote to Ms James making a formal On 2 February 2022 Mr Adkins wrote to Ms James making a formal complaint against Ms Devonishcomplaint against Ms Devonish. He alleged that Ms Devonish had. He alleged that Ms Devonish had either either deliberately or unwittingly joined herself to the actions of 3R in harassing the deliberately or unwittingly joined herself to the actions of 3R in harassing the Case No: 1601026/2022 38 claimant on grounds of her ethnic origin and/or gender in 3R’s management claimant on grounds of her ethnic origin and/or gender in 3R’s management and pursuit of the parental complaint. and pursuit of the parental complaint. He said Ms Devonish hHe said Ms Devonish had harassed the ad harassed the claimant by convclaimant by convening a safeguarding strategy meeting outside the definition ening a safeguarding strategy meeting outside the definition of emotional and significant harm. Mr Adkins said it was only potentially a of emotional and significant harm. Mr Adkins said it was only potentially a conduct matter which should have simply been referred back to the schoolconduct matter which should have simply been referred back to the school. . He said as a result ofHe said as a result of Ms DevonishMs Devonish’s actions the claimant had suffered an ’s actions the claimant had suffered an extreme psychological reaction which had resulted in an application for an extreme psychological reaction which had resulted in an application for an injury payment. He said: “injury payment. He said: “We seek as a remedy that this strategy meeting is We seek as a remedy that this strategy meeting is reconvened and chaired by a competent social worker areconvened and chaired by a competent social worker and the referral closed nd the referral closed with No Further Action.” with No Further Action.” 144. 144. On 4 February 2022 Ms Forte wrote to Mr Adkins. We do not have the On 4 February 2022 Ms Forte wrote to Mr Adkins. We do not have the letterletter but from but from subsequent responses subsequent responses it can be gleaned that it can be gleaned that the letter said the the letter said the claimant’s complaint against 3R would be claimant’s complaint against 3R would be processed under the grievance processed under the grievance procedureprocedure rather than the disciplinary procedurerather than the disciplinary procedure and the claimant was invited and the claimant was invited toto complete complete a complaints form under the grievance policya complaints form under the grievance policy. Mr Adkins . Mr Adkins responded that day [173] to responded that day [173] to say say 3R had potentially committed disciplinary acts 3R had potentially committed disciplinary acts aand thnd the disciplinarye disciplinary procedure should be used. procedure should be used. On 8 February Ms Forte On 8 February Ms Forte respondedresponded [174,175] to [174,175] to say she urged the claimant to complete the say she urged the claimant to complete the complaints form under the grievance procedure so that it could proceed in a complaints form under the grievance procedure so that it could proceed in a timely mannertimely manner. Ms Forte . Ms Forte also encouraged the calso encouraged the claimant to engage with Ms N laimant to engage with Ms N Williams so that Williams so that the claimant’sthe claimant’s evidence could be considered by the evidence could be considered by the Disciplinary and Dismissal panel. Disciplinary and Dismissal panel. 145. 145. On 10 February 2022 On 10 February 2022 Mr Adkins responded to Mr Adkins responded to Ms Forte to Ms Forte to again say again say he wanted the complaint against 3R treated as a he wanted the complaint against 3R treated as a disciplinary matterdisciplinary matter. . Mr Mr AdkinsAdkins repeatedrepeated again that it again that it was not true that the claimant had failed to was not true that the claimant had failed to engage in the safeguarding processengage in the safeguarding process,, but that she could not give her point of but that she could not give her point of view if she did not know the nature of the allegationsview if she did not know the nature of the allegations. Mr Adkins said they . Mr Adkins said they were at an impasse and proposed that the parental complaint were at an impasse and proposed that the parental complaint bbe treated e treated under the complaints procedure in the first instance [176].under the complaints procedure in the first instance [176]. 146. 146. OOn 10 February 2022 Mr Adkins wrote to Ms James n 10 February 2022 Mr Adkins wrote to Ms James saying he wished saying he wished the department to the department to withdraw the false allegation the claimant had failed to withdraw the false allegation the claimant had failed to engage. engage. He said again that the referral was outside of safeguarding and that He said again that the referral was outside of safeguarding and that her departmenther department had engaged in “craven acquiescence” with 3R abusing had engaged in “craven acquiescence” with 3R abusing safeguarding proceduressafeguarding procedures [178].[178]. That day That day Mr Adkins received a response from Mr Adkins received a response from Ms James that we do not have details of. Ms James that we do not have details of. Mr Adkins then wrote to Ms Forte Mr Adkins then wrote to Ms Forte [179][179] asserting that asserting that 3R was prejudicing the wellbein3R was prejudicing the wellbeing of pupils by failing to g of pupils by failing to comply with safeguarding procedures. He referred to comparatorcomply with safeguarding procedures. He referred to comparatorss 1,1, 2 and 32 and 3.. 147. 147. On 11 February 2022 On 11 February 2022 Mr Browne provided a redacted version of the Mr Browne provided a redacted version of the parental complaint to the claimant [163parental complaint to the claimant [163--164].164]. We do not have a copy of the We do not have a copy of the covering covering emailemail, but later Mr Adkins referred to Mr Browne having said that the , but later Mr Adkins referred to Mr Browne having said that the questions asked by Mrs Prosser to the pupils were not written down and no questions asked by Mrs Prosser to the pupils were not written down and no notes were taken [190]. The provision of the redacted parental complaintnotes were taken [190]. The provision of the redacted parental complaint happened following Mr Brownehappened following Mr Browne taking advice from the Local Authority taking advice from the Local Authority Freedom of Information section Freedom of Information section andand alsoalso getting approval from the family as getting approval from the family as to the redacted version that would be provided.to the redacted version that would be provided. 148. 148. Mr Adkins then wrote to Ms James [182] saying the resolMr Adkins then wrote to Ms James [182] saying the resolution they ution they were now seeking were now seeking was for the preliminary safeguarding meetwas for the preliminary safeguarding meeting to take place ing to take place with a view to reconvening the part 5 meeting, as previously offered by 3Rwith a view to reconvening the part 5 meeting, as previously offered by 3R. . Case No: 1601026/2022 39 Mr Adkins also wrote to Ms Forte [183] proposing another remedy to the Mr Adkins also wrote to Ms Forte [183] proposing another remedy to the complaint/grievance complaint/grievance along the same lines and suggesting that the schoolalong the same lines and suggesting that the school stay stay the investigation pending the meeting. He said the school could then decide the investigation pending the meeting. He said the school could then decide whether to continue and, if so, whether to continue and, if so, whether whether under the complaints or disciplinary under the complaints or disciplinary procedureprocedure. . Mr Adkins Mr Adkins said that if agreed the Nsaid that if agreed the NASUWT would formally ASUWT would formally withdraw their complaints. On withdraw their complaints. On 14 February 2022 Ms Forte responded to say it 14 February 2022 Ms Forte responded to say it seemed a sensible way forward if seemed a sensible way forward if Ms Devonish’s offer remained open [184]. Ms Devonish’s offer remained open [184]. Ms Forte said she had asked Ms N Williams to suspend the investigation but Ms Forte said she had asked Ms N Williams to suspend the investigation but regardlesregardless of the outcome of the strategy meeting the school would still need s of the outcome of the strategy meeting the school would still need to consider the concerns raised one way or anotherto consider the concerns raised one way or another. Ms Forte queried . Ms Forte queried whether the NASUWT withdrawal of complaints whether the NASUWT withdrawal of complaints included the collective included the collective grievance. grievance. 149. 149. On 18 February 2022 the claimant’s GP signed her off as unfit for work On 18 February 2022 the claimant’s GP signed her off as unfit for work until 1 April 2022 until 1 April 2022 because of “stress.” because of “stress.” 1 1550.0. On 21 February 2022 Ms Forte On 21 February 2022 Ms Forte wrote to Mr Adkins to say that the wrote to Mr Adkins to say that the request had been passed to the safeguarding team but due to the amount of request had been passed to the safeguarding team but due to the amount of time that had passed since the initial hearing, and because the investigation time that had passed since the initial hearing, and because the investigation had started, had started, the safeguarding team had advised it will now not reconvene until the safeguarding team had advised it will now not reconvene until the investigation process had completed. Ms Forte said she therefore had the investigation process had completed. Ms Forte said she therefore had asked Ms N Williams to comasked Ms N Williams to complete the investigation as quickly as possible plete the investigation as quickly as possible [186]. [186]. Mr Adkins responded to say he accepted the school had to investigate Mr Adkins responded to say he accepted the school had to investigate but requested that it happen under the parental complaints procedure [187]. but requested that it happen under the parental complaints procedure [187]. 1 1551.1. On On 24 February 2022 Mr Adkins wrote to Mr Browne. He raised some 24 February 2022 Mr Adkins wrote to Mr Browne. He raised some concerns about the level of redactions to the parental complaint [190concerns about the level of redactions to the parental complaint [190--191]. 191]. He He also raised concerns about the process following in taking the pupil accounts also raised concerns about the process following in taking the pupil accounts and and in the delay in giving to the clain the delay in giving to the claimant the detail of the allegations against imant the detail of the allegations against herher and the impact that it was all having on her health. and the impact that it was all having on her health. 152. 152. On 28 February 2022 Ms Forte wrote to Mr Adkins saying that On 28 February 2022 Ms Forte wrote to Mr Adkins saying that she she could not accede to the request to deal with the matter under the parental could not accede to the request to deal with the matter under the parental complaint procedure. She referred to Welsh Government guidance sayincomplaint procedure. She referred to Welsh Government guidance saying g that where the concern, if proven, would be likely to result in disciplinary that where the concern, if proven, would be likely to result in disciplinary proceedings being instigated then the matter should be dealt with under the proceedings being instigated then the matter should be dealt with under the disciplinary proceduredisciplinary procedure. She said . She said she would be contacting Ms N Williams to she would be contacting Ms N Williams to ask ask Ms N Williams Ms N Williams to resume her work [193].to resume her work [193]. Blue Turtle Consultants disciplinary investigation Blue Turtle Consultants disciplinary investigation 1 1553.3. On 8 March 2022 Ms N Williams wrote to Mr Adkins suggesting aOn 8 March 2022 Ms N Williams wrote to Mr Adkins suggesting ann interview in the week commencing 28 Marchinterview in the week commencing 28 March. She re. She re--sent the sample questions. sent the sample questions. The sample questions refer to the form class on 8 October 2021 and ask whether The sample questions refer to the form class on 8 October 2021 and ask whether the claimant made any comments about her own opinions regarding discussion the claimant made any comments about her own opinions regarding discussion topicstopics, for example, abo, for example, about the police and any recent events that had been in the ut the police and any recent events that had been in the media, her own experience of the police, and her opinion of the trustworthiness media, her own experience of the police, and her opinion of the trustworthiness of of the police. the police. The claimantThe claimant was also asked if during the cwas also asked if during the classlass she made any she made any comments about her own opinions regarding dcomments about her own opinions regarding discussion topics, for example iscussion topics, for example about racism and whether she used any racially inappropriate languageabout racism and whether she used any racially inappropriate language. . The The claimantclaimant was asked whether in any other classes, possibly earlier in that week,was asked whether in any other classes, possibly earlier in that week, she made comments about her own opinions about discussion she made comments about her own opinions about discussion topics, for topics, for example, the LBGexample, the LBGTQ+ community in relation to her opinions of gender identity. TQ+ community in relation to her opinions of gender identity. Case No: 1601026/2022 40 The claimant was also asked if at any time she had identified any specific pupils The claimant was also asked if at any time she had identified any specific pupils in the school by reference or name that the claimant had in the school by reference or name that the claimant had specific opinions about, specific opinions about, inin relation to the LGBTQ+ community. She was asked if she made any comments relation to the LGBTQ+ community. She was asked if she made any comments about any perceived stereotypical behaviour they may have exhibited, to pupilsabout any perceived stereotypical behaviour they may have exhibited, to pupils in in the form group [the form group [194194--196].196]. 154. 154. Mr Adkins proposedMr Adkins proposed dates for the week commencing 4 April as the dates for the week commencing 4 April as the claimant was signed off by her GP until 1 April [198]. claimant was signed off by her GP until 1 April [198]. He then wrote again to say He then wrote again to say that the claimant was in fact well enough to attempt a phased return to work the that the claimant was in fact well enough to attempt a phased return to work the week commencing 28 March [199]week commencing 28 March [199], , requesting dates that week and saying the requesting dates that week and saying the claimant now preferclaimant now preferredred to get the interview over with. to get the interview over with. 155. 155. On 15 March the claimant had a further occupational health review On 15 March the claimant had a further occupational health review [200]. [200]. The report said the claimant continued to be very anxious about the The report said the claimant continued to be very anxious about the complaint mcomplaint made against her but was pleased an investigation meeting had been ade against her but was pleased an investigation meeting had been arranged for 29 Marcharranged for 29 March. The doctor said the claimant was very keen to return to . The doctor said the claimant was very keen to return to work as soon as possible, her medical certificate finished on 1 Aprilwork as soon as possible, her medical certificate finished on 1 April,, and she and she would like to attempt a phased return to work on 4 Aprilwould like to attempt a phased return to work on 4 April. The doctor agreed . The doctor agreed and and recommended recommended that the phased return to workthat the phased return to work thenthen continue after the Easter continue after the Easter breakbreak. . 156. 156. On 15 March Mr Browne responded to Mr Adkins about the subject On 15 March Mr Browne responded to Mr Adkins about the subject access request. access request. Mr BrowneMr Browne had taken had taken further advice from the Freedom of further advice from the Freedom of Information Team and provided a further copy of the parental complaint with Information Team and provided a further copy of the parental complaint with some of the redactions reduced [201]. Mr Browne some of the redactions reduced [201]. Mr Browne said he was otherwise unable said he was otherwise unable to comment on the other issues raised by Mr Adkins as he was dealing just with to comment on the other issues raised by Mr Adkins as he was dealing just with the subject access request. the subject access request. Mr Browne Mr Browne said there was no intention in the SAR said there was no intention in the SAR process to cause distress and he had needed to take advice as it seemedprocess to cause distress and he had needed to take advice as it seemed the the request was not straight forward. He said request was not straight forward. He said ultimately the author of the concerns ultimately the author of the concerns gave consent to its disclosure, otherwise he may well have been in a position of gave consent to its disclosure, otherwise he may well have been in a position of not being able to disclose. not being able to disclose. 157. 157. On 25 March the claimant forwarded the latest occupatioOn 25 March the claimant forwarded the latest occupational health nal health report to Mr Brownereport to Mr Browne, proposing she start her phased return to work on , proposing she start her phased return to work on Tuesday 5 Tuesday 5 April [204]. Mr BroApril [204]. Mr Browne suggested that they meet that morning [205]. wne suggested that they meet that morning [205]. 158. 158. Mr Adkins wrote to Mr Brown chasing up the injury at work attestation Mr Adkins wrote to Mr Brown chasing up the injury at work attestation issue. He saidissue. He said:: ““Due to Miss Byfield’s impending return we wish for the Due to Miss Byfield’s impending return we wish for the current episode of absence to be attributed to being caused by an injury at current episode of absence to be attributed to being caused by an injury at work.”work.” Mr Adkins says the email was dated 25 February 2022 [192] although Mr Adkins says the email was dated 25 February 2022 [192] although it seems more likely it was 25 March 2022 given itit seems more likely it was 25 March 2022 given it refers to an impending refers to an impending return to work and because it is referred to in a subsequent email of 30 March return to work and because it is referred to in a subsequent email of 30 March at [206].at [206]. 159. 159. On On 29 March 2022 the claimant had her interview with Ms Williams.29 March 2022 the claimant had her interview with Ms Williams. 160. 160. On 30 March 2022 Mr Adkins wrote to Mr Browne about the return to On 30 March 2022 Mr Adkins wrote to Mr Browne about the return to work meeting [206]. In his email work meeting [206]. In his email he said there may be a counter complaint he said there may be a counter complaint against the parent and also if the parent was a public servant, to their against the parent and also if the parent was a public servant, to their employers. He said they would shortly be femployers. He said they would shortly be filing a complaint of racial iling a complaint of racial discrimination against the discrimination against the cchair of the hair of the sstrategy meettrategy meeting. ing. Case No: 1601026/2022 41 161. 161. In April 2022 Ms N Williams provided her investigation report. She hIn April 2022 Ms N Williams provided her investigation report. She had ad interviewed Child A and 9 other pupils in the form selected at randinterviewed Child A and 9 other pupils in the form selected at random. om. In her In her report she summarised the claimant’s career history, including that the report she summarised the claimant’s career history, including that the claimant hadclaimant had,, as the only ethnic, black, minority history teacher the school as the only ethnic, black, minority history teacher the school had ever had, had ever had, tried tried to introduce elements of black history throughout the to introduce elements of black history throughout the curriculum where appropricurriculum where appropriate. ate. 162. 162. Ms N Williams’ reportMs N Williams’ report [223][223] records the claimant saying that in the form records the claimant saying that in the form class on 8 October 2021 she hadclass on 8 October 2021 she had asked the class to nominate a news story asked the class to nominate a news story from the week that had interested them. The structured tasks for the form to from the week that had interested them. The structured tasks for the form to complete in the 20 minute tutorial were complete in the 20 minute tutorial were a couple of riddles that they had a couple of riddles that they had quickly solved. One pupil mentioned Black History Month and quickly solved. One pupil mentioned Black History Month and asas nothing else nothing else had been mentioned the claimant referred to a video they had previously had been mentioned the claimant referred to a video they had previously watched about the Mangrove 9. watched about the Mangrove 9. The claimant explained that she told the form The claimant explained that she told the form about another film that was part of the same series which detailed the about another film that was part of the same series which detailed the struggles of a black mastruggles of a black man who joined the Metropolitan Police in the 1980sn who joined the Metropolitan Police in the 1980s, , both in relation to his working life and his family life. both in relation to his working life and his family life. The claimant also The claimant also explained that another pupil had mentioned the murder of Sarah Everard explained that another pupil had mentioned the murder of Sarah Everard and and that she had asked the pupil why the news story concerthat she had asked the pupil why the news story concerned ned the pupilthe pupil. The . The claimant reported that the pupil had saidclaimant reported that the pupil had said:: ““because the man was a policeman because the man was a policeman Miss and people are supposed to trust the police.”Miss and people are supposed to trust the police.” The claimant said she had The claimant said she had quoted to the form comments made by quoted to the form comments made by Cressida Dick, Commissioner of the Cressida Dick, Commissioner of the Metropolitan Police Service, Metropolitan Police Service, that the fact the murderer was a serving member that the fact the murderer was a serving member of the police force had undermineof the police force had underminedd the public’s confidence in the police. The the public’s confidence in the police. The clclaimant recounted that there was then a wider discussion about personal aimant recounted that there was then a wider discussion about personal safety and ways that men and women can participate in creating a safe safety and ways that men and women can participate in creating a safe environment for themselves and others. environment for themselves and others. The claimant expressly denied The claimant expressly denied making comments about not trusting the police making comments about not trusting the police oror sayingsaying:: ““don’t get in the don’t get in the back of the car they are all rapists.” back of the car they are all rapists.” 163. 163. Of the 10 pupils spokeOf the 10 pupils spokenn to, Child A (he is identified as Pupil B in the to, Child A (he is identified as Pupil B in the report), report), said to Ms N Williams: “said to Ms N Williams: “Miss said that all police are rapists and not to Miss said that all police are rapists and not to trust them.”trust them.” Pupil A asserted: Pupil A asserted: “Ms Byfield said if a police officer told her to get “Ms Byfield said if a police officer told her to get into the police car, she wouldn’t trust them after the incident that happened. I into the police car, she wouldn’t trust them after the incident that happened. I cant think of anything else.”cant think of anything else.” Pupil F saiPupil F said: “d: “She made a statement saying she She made a statement saying she would never get in a Police car on her own. She would always make them would never get in a Police car on her own. She would always make them walk back to her police so that she could get walk back to her police so that she could get in the car with her husband in the car with her husband because she wouldn’t feel safe getting in a police car on her ownbecause she wouldn’t feel safe getting in a police car on her own” and” and:: ““she she sasaid not to trust them and anyone could dress up like a policeman. She said id not to trust them and anyone could dress up like a policeman. She said not to trust them because they’re horrible and they could do anything, like not to trust them because they’re horrible and they could do anything, like what happened to Sarah Everardwhat happened to Sarah Everard..” Pupil F was ask” Pupil F was askeed how that made them d how that made them feel and saidfeel and said:: ““I really I really didn’t think much of it until she went into more detail. In didn’t think much of it until she went into more detail. In Primary wPrimary wee were always told the Police were good and now I’ve got mixed were always told the Police were good and now I’ve got mixed emotionsemotions. Do I, or don’t I? I don’t know anymore.”. Do I, or don’t I? I don’t know anymore.” 164. 164. Pupil Pupil I’s recollection was: “I’s recollection was: “She said she thought you could She said she thought you could trust most of trust most of the Police, it was just some of ththe Police, it was just some of themem” and” and:: ““She said you could trust most of She said you could trust most of the them but some of them are bad and you should always ask to see their the them but some of them are bad and you should always ask to see their Police ID in case they’re lyingPolice ID in case they’re lying.” .” 165. 165. Pupil H said they could remember they were talking about Sarah Pupil H said they could remember they were talking about Sarah Everard and the claimant talking about trusting the Everard and the claimant talking about trusting the ppolice and stuff like that. olice and stuff like that. Pupil H was asked Pupil H was asked iif the claimant expressed her own opinions about trusting f the claimant expressed her own opinions about trusting Case No: 1601026/2022 42 the police and said: “ the police and said: “Not so much herNot so much her own opinions, she was asking whether own opinions, she was asking whether we trusted them or not.we trusted them or not.” The pupil could not remember anything else. ” The pupil could not remember anything else. Pupil D Pupil D recalled the claimant saying to be careful and to ask the police if you can go recalled the claimant saying to be careful and to ask the police if you can go with somebody you know, and that the claimant was just tellinwith somebody you know, and that the claimant was just telling them to be g them to be more careful.more careful. 166. 166. Pupil G said the claimant only mentioned Pupil G said the claimant only mentioned the case and said the the case and said the claimant did not give any opinion.claimant did not give any opinion. Pupil J recalled them talking about the case Pupil J recalled them talking about the case and how it was wrong and said the claimant had not said anything about her and how it was wrong and said the claimant had not said anything about her opinions of the police. opinions of the police. Pupil E could not remember the claimant saying Pupil E could not remember the claimant saying anything about the police other than talking about the Sarah Eveanything about the police other than talking about the Sarah Everard case. rard case. Pupil CPupil C could not remember anything about the policecould not remember anything about the police being discussed.being discussed. 167. 167. In respect of the allegation the In respect of the allegation the that the claimantthat the claimant had recounted a family had recounted a family story where her brother had allegedly said to a police officer: “story where her brother had allegedly said to a police officer: “can you smell can you smell the baconthe bacon,” Ms ,” Ms N Williams reportN Williams report’s sets out the claimant’s account that ’s sets out the claimant’s account that she she did also talk with the form about her own dealings, and those of her family did also talk with the form about her own dealings, and those of her family wwith ith members of the police, which had been both positive and negative. members of the police, which had been both positive and negative. The The claimantclaimant explained that it was not her brother who had made the comment: explained that it was not her brother who had made the comment: Can you smell the baconCan you smell the bacon” and that she had not herself been sat in the back of ” and that she had not herself been sat in the back of a police car. She explained a police car. She explained the tale was really about her own brother’sthe tale was really about her own brother’s thenthen poor choices about the company he was keeping at the time.poor choices about the company he was keeping at the time. She said she She said she did not at any point say that this led her or her family to demonstrate any did not at any point say that this led her or her family to demonstrate any hatred or mistrust of hatred or mistrust of the policethe police,, and that in telling theseand that in telling these personal stories she personal stories she was trying to get the class to understand where mistrust can come from and was trying to get the class to understand where mistrust can come from and how opinions can be based on personal experience as well as cultural issues how opinions can be based on personal experience as well as cultural issues and how they can change over time, especially as people mature and and how they can change over time, especially as people mature and develop. develop. 168. 168. Only three pupils recounted the claimant discussing Only three pupils recounted the claimant discussing her family’s her family’s encounters with the policeencounters with the police which all differedwhich all differed. Miss N Williams summarised it . Miss N Williams summarised it asas:: ““SB has admitted to making the comment, “Can you smell the bacon?” in SB has admitted to making the comment, “Can you smell the bacon?” in relation to a story she was telling to relation to a story she was telling to the pupils abthe pupils aboout her brother and his ut her brother and his friends’ encounter with the Police, and she also discussed her own and her friends’ encounter with the Police, and she also discussed her own and her families’ experiences with the Police Forcefamilies’ experiences with the Police Force.. This needs to be taken in context This needs to be taken in context to the narrative of the discussion.to the narrative of the discussion.”” 169. 169. In respect of the In respect of the allegation that the claimant “discussed racism with the allegation that the claimant “discussed racism with the pupilspupils”” and allegedly; “Miss Byfield stated it’s OK for her to use the word and allegedly; “Miss Byfield stated it’s OK for her to use the word nigger due to her race”nigger due to her race”; the report [229] sets out the claimant’s statement; the report [229] sets out the claimant’s statement:: “As I’ve stated previously, I've always “As I’ve stated previously, I've always understood the responsibility I have, as understood the responsibility I have, as a black minority ethnic teacher, to help my students understand the a black minority ethnic teacher, to help my students understand the experiences of other races and cultures.experiences of other races and cultures. I have, where appropriate shared I have, where appropriate shared with my classes my own experiences of racism and that of my family. I tolwith my classes my own experiences of racism and that of my family. I told my d my class of the racism I had experienced as a teacher at Barry class of the racism I had experienced as a teacher at Barry CComprehensive omprehensive when I had been referred to as awhen I had been referred to as a niggernigger on three separate occasions. I on three separate occasions. I expressed to my class how the use of that word made me feelexpressed to my class how the use of that word made me feel and also the and also the history history andand the weight of it.the weight of it. This last point is important as they are a This last point is important as they are a YeYear 9ar 9 formform, and , and YYear ear 99 study the study the slave trade and will hear this word in some of the film clips we use. So, I feel it slave trade and will hear this word in some of the film clips we use. So, I feel it is vital that I get my class to understand the historical and cultural is vital that I get my class to understand the historical and cultural Case No: 1601026/2022 43 con connotations of this word especially as they may have been denotations of this word especially as they may have been de--sensitised to it sensitised to it in rap music and films. I tell my class how the word nigin rap music and films. I tell my class how the word niggerger was used to was used to dede--humanise an entire race and to justify their poor treatment for hundreds of humanise an entire race and to justify their poor treatment for hundreds of years.years. I am a fan of the comeI am a fan of the comedian and social commentator dian and social commentator Dick Dick Gregory who Gregory who says that the word nigsays that the word niggerger can kill a man and this is the way I wish my can kill a man and this is the way I wish my students to view that word. students to view that word. WWe discussed that there are two schools of thought about it and how some e discussed that there are two schools of thought about it and how some black people feel that it's black people feel that it's okay okay but that I am firmly in the camp of no, it is nobut that I am firmly in the camp of no, it is not t okayokay and it's not a word I use. I did not say it's and it's not a word I use. I did not say it's okay okay for me to use the word for me to use the word niniggergger to describe mysto describe myselfelf as I am as I am black.black.”” 170. 170. The report The report records that the claimant was very clear she had records that the claimant was very clear she had notnot said it said it was ok for her to use the N word because of her race and how the idea she was ok for her to use the N word because of her race and how the idea she would stand there and say that would stand there and say that was abhorrent to her. was abhorrent to her. 171. 171. As summarised within the report As summarised within the report only Child A only Child A had alleged the had alleged the cclaimant laimant said it was ok to use the N word. said it was ok to use the N word. Two pupiTwo pupils said the claimant had used the N ls said the claimant had used the N word but in the context of word but in the context of conversation regarding Black History and slavery conversation regarding Black History and slavery and they appeared to recognise it was unacceptable to refer to people in that and they appeared to recognise it was unacceptable to refer to people in that manner. One pupil said they had been told the claimant had used thmanner. One pupil said they had been told the claimant had used the N word e N word but had not heard her say it themself. The remainder of the pupils did not but had not heard her say it themself. The remainder of the pupils did not recall the claimant using the term or said if she were to use it, it would be in recall the claimant using the term or said if she were to use it, it would be in the correct context of a lesson topicthe correct context of a lesson topic. . 172. 172. Child A Child A also alleged:also alleged: ““She also said that She also said that there are only two gendersthere are only two genders”. ”. The remainder of the pupils either did not recall the topic of gender ideThe remainder of the pupils either did not recall the topic of gender identity or ntity or said that the claimant was supportive of the LBGTQ+ said that the claimant was supportive of the LBGTQ+ community. The community. The claimant explained that she did talk about gender identity in relation to a claimant explained that she did talk about gender identity in relation to a discussion topic, discussion topic, butbut it was a pupil who made the comment it was a pupil who made the comment which which the claimantthe claimant had challenged. had challenged. As summarised within the report, the As summarised within the report, the cclaimantlaimant alsoalso confirmed confirmed she had disshe had discussed (but not by name) a former pupil who had come out as gay cussed (but not by name) a former pupil who had come out as gay and had changed his voice, appearance, personality and that she had told and had changed his voice, appearance, personality and that she had told him that it upset her at the thought he felt he had to change who he was to fit him that it upset her at the thought he felt he had to change who he was to fit in with society’s ideas of what a gay min with society’s ideas of what a gay man should sound like. an should sound like. She said the She said the pupil continued pupil continued to check in with her until he left after his GCSEs. to check in with her until he left after his GCSEs. Child A Child A alleged the claimant had saidalleged the claimant had said:: ““She has laughed about a boy in a different She has laughed about a boy in a different class, saying that he sounds stupid and is putting on a voice to class, saying that he sounds stupid and is putting on a voice to pretend he is pretend he is gay. She also saigay. She also saidd that he pulled this boy over to tell him just that.” that he pulled this boy over to tell him just that.” Two other Two other pupils alleged the claimant had pupils alleged the claimant had made comments about a pupil who had made comments about a pupil who had changed his changed his voice. Only one of those thought the pupil had been identified by voice. Only one of those thought the pupil had been identified by name rathername rather than being a than being a year 10 pupil. The other pupilsyear 10 pupil. The other pupils interviewedinterviewed did not did not recall itrecall it.. April 2022 April 2022 173. 173. On 1 April On 1 April Ms Dickinson emailed Mr Adkins asking for further detail Ms Dickinson emailed Mr Adkins asking for further detail about the allegation that about the allegation that 3R had treated a member of staff in a d3R had treated a member of staff in a discriminatory iscriminatory way. She said that alternatively a grievance could be submitted but there way. She said that alternatively a grievance could be submitted but there would would again again need to be more detail with a specneed to be more detail with a specific allegation [243]. Mr Adkins ific allegation [243]. Mr Adkins responded to say a grievance would not be submitted responded to say a grievance would not be submitted as an alleged act of as an alleged act of misconduct did not need amisconduct did not need a ggririevance to be submitteevance to be submitted. He said the evidence d. He said the evidence would be given to the investigator once appointed [242]would be given to the investigator once appointed [242].. Ms Dickinson Ms Dickinson Case No: 1601026/2022 44 presse pressed again for details of the actual allegations [244]d again for details of the actual allegations [244],, which Mr Adkins which Mr Adkins responded to on 2 April [245] responded to on 2 April [245] alleging that 3R hadalleging that 3R had:: ““contrived with a parent to contrived with a parent to make a false and malicious complaint against SB. To pursue a false allegation make a false and malicious complaint against SB. To pursue a false allegation against a person of colour against a person of colour racist is itself racist. To pursue a false allegation racist is itself racist. To pursue a false allegation that SB used a racist epitaph without any context that SB used a racist epitaph without any context is as if the word cais as if the word came out of me out of his own mouth.”his own mouth.” It was alleged 3R did not talk to the claimant about the It was alleged 3R did not talk to the claimant about the parental complaint because 3R wanted to pursue disciplinary allegations parental complaint because 3R wanted to pursue disciplinary allegations because the claimant had given evidence in support of another member of because the claimant had given evidence in support of another member of staff in a disciplinary procstaff in a disciplinary processess. It was alleged 3R had escalated the complaint . It was alleged 3R had escalated the complaint to safeguarding when it did not meet the definition of abuse /significant harm to safeguarding when it did not meet the definition of abuse /significant harm because it was 3R’sbecause it was 3R’s:: “modus operandi because he wishes to elevate the “modus operandi because he wishes to elevate the nature of the allegations in the minds of any nature of the allegations in the minds of any subsequent decision makersubsequent decision maker.” .” It It was alleged 3R had presented false information to the safeguarding strategy was alleged 3R had presented false information to the safeguarding strategy meeting because meeting because 3R3R wished to incriminate SBwished to incriminate SB and 3R had contrived to deny and 3R had contrived to deny the claimant the opportunity to provide her version of events as requested the claimant the opportunity to provide her version of events as requested by by the chair of the strategy meetingthe chair of the strategy meeting. . 174. 174. On On 5 April 2022 the claimant (together with Mr Adkins and Ms 5 April 2022 the claimant (together with Mr Adkins and Ms Alderman from HR) met on Zoom with Mr BrownAlderman from HR) met on Zoom with Mr Browne to discuss her phased e to discuss her phased return to work. return to work. Mr Browne followed it up with a summary letter dated 6 April Mr Browne followed it up with a summary letter dated 6 April 2022 [2462022 [246--247]. 247]. It was explained that the investigation had been completed It was explained that the investigation had been completed and that the report would be considered by the Chair of Governors to and that the report would be considered by the Chair of Governors to determine the next steps. The letter determine the next steps. The letter recorded thatrecorded that Mr Adkins referred to his Mr Adkins referred to his email in connection with the request to extend sick pay for industrial email in connection with the request to extend sick pay for industrial injury/accident at work. Itinjury/accident at work. It thenthen recordedrecorded:: ““Sue Alderman explained that she was advising on this matter as it is Sue Alderman explained that she was advising on this matter as it is something that affects all schools in the Vale. Colin requested that certain something that affects all schools in the Vale. Colin requested that certain questions were referred to Occupational Health as per his email. Sue replied questions were referred to Occupational Health as per his email. Sue replied that she did not that she did not believe it was believe it was the role of Occupational Health to decide the role of Occupational Health to decide whether a stress related illness was a psychiatric injury as this was a complex whether a stress related illness was a psychiatric injury as this was a complex legal matter and that it would be necessary for each case to be determined on legal matter and that it would be necessary for each case to be determined on its own meritsits own merits. Whilst she was unable to find any case l. Whilst she was unable to find any case law regarding the aw regarding the extension of sick pay as in this scenario, she had established that there was extension of sick pay as in this scenario, she had established that there was case law that identified that stress was not normally classed as a psychiatric case law that identified that stress was not normally classed as a psychiatric injury and that there were certain key aspects that had been considered by injury and that there were certain key aspects that had been considered by the couthe courts. As this request is no longer relevant to Stephanie’s case, she had rts. As this request is no longer relevant to Stephanie’s case, she had requested that, if necessary, Colin pursues this via the Local Authority requested that, if necessary, Colin pursues this via the Local Authority separately.” separately.” Outcome meeting with the claimant Outcome meeting with the claimant 175. 175. On 3 MayOn 3 May Ms Forte met with Mr Browne about the Blue Turtle report. Ms Forte met with Mr Browne about the Blue Turtle report. There are minutes at [249]. There are minutes at [249]. The minutes say there was a lengthy discussion The minutes say there was a lengthy discussion about whether the allegations had been substantiated or not. It was recorded:about whether the allegations had been substantiated or not. It was recorded: ““-- It was felt that, in respect of the It was felt that, in respect of the allegation considered by the Safeguarding allegation considered by the Safeguarding Panel (whether the comments made by SB to the class would have led to a Panel (whether the comments made by SB to the class would have led to a loss of confidence in the police by pupils), there was a sufficient concern to loss of confidence in the police by pupils), there was a sufficient concern to warrant an informal conversation with SB about the content of twarrant an informal conversation with SB about the content of that lesson and hat lesson and the effect on impressionable and/or vulnerable students.the effect on impressionable and/or vulnerable students. Case No: 1601026/2022 45 -- In respect of the other allegations: whilst the evidence was inconclusive, it In respect of the other allegations: whilst the evidence was inconclusive, it was felt that sufficient ambiguity had been raised regarding the was felt that sufficient ambiguity had been raised regarding the appropriateness of the appropriateness of the comments (particularly those citing personal family comments (particularly those citing personal family detail) to necessitate a further meeting with SB to explain and discuss the detail) to necessitate a further meeting with SB to explain and discuss the concerns. Furthermore, it was felt that information that could haveconcerns. Furthermore, it was felt that information that could have led to the led to the identification of certain individuals not in thatidentification of certain individuals not in that class should not have been class should not have been included in the lesson.included in the lesson. -- It was decided that the seriousness of It was decided that the seriousness of thethe concerns should be conveyed and concerns should be conveyed and discussed with Ms Byfield by the EH.discussed with Ms Byfield by the EH. -- It was decided that the Chair of Governors should write to Ms Byfield It was decided that the Chair of Governors should write to Ms Byfield advising thatadvising that such a meeting take place, and that as a result of that meeting, such a meeting take place, and that as a result of that meeting, disciplinary action could still be a possibility.” disciplinary action could still be a possibility.” 176. 176. Ms Forte then wrote to the claimanMs Forte then wrote to the claimant saying that she was of the opinion t saying that she was of the opinion there was sufficient evidence there was sufficient evidence that the matters be discussed further with the that the matters be discussed further with the claimantclaimant,, and she had asked Mr Browand she had asked Mr Brownene to arrange to see the claimant on an to arrange to see the claimant on an informal basis in accordance with the disciplinary procedure [248].informal basis in accordance with the disciplinary procedure [248]. The letter The letter said the meeting would be held to discuss the content of the report and what, said the meeting would be held to discuss the content of the report and what, if any, action training or strategies can be put in place to ensure that a similar if any, action training or strategies can be put in place to ensure that a similar situation did not resituation did not reoccur. occur. 177. 177. On 14 May Mr Adkins wrote to Ms James seeking a review of the On 14 May Mr Adkins wrote to Ms James seeking a review of the strategy meeting outcome following receipt of the Blue Turtle report [250]. strategy meeting outcome following receipt of the Blue Turtle report [250]. He He said if safeguarding positively reviewed the outcome it would be the end of all said if safeguarding positively reviewed the outcome it would be the end of all matters he had with the service arising out of the referral.matters he had with the service arising out of the referral. 178. 178. On 15 May Mr Adkins On 15 May Mr Adkins wrote to Ms Forte seeking to make a complaint wrote to Ms Forte seeking to make a complaint against Child A’s motheragainst Child A’s mother (in her role as(in her role as a governor)a governor) allegingalleging she had she had conspired with 3R to pursue demonstrably false allegations against the conspired with 3R to pursue demonstrably false allegations against the claimant claimant on on grounds of her ethnic origin and/or gendergrounds of her ethnic origin and/or gender. He said he was also . He said he was also considering making a complaint against the police officer fatherconsidering making a complaint against the police officer father and he would and he would aalso be making a referral to safeguarding. lso be making a referral to safeguarding. Mr AdkinsMr Adkins said in the absence of a said in the absence of a failure to consider a disciplinary case against 3R he wasfailure to consider a disciplinary case against 3R he was alsoalso making a making a referral to the Education Workforce Council [251]. referral to the Education Workforce Council [251]. 179. 179. On On 18 May Ms Dickinson emailed Mr Adkins saying that they had 18 May Ms Dickinson emailed Mr Adkins saying that they had previously spoken about the complaint against 3R and that she had told Mr previously spoken about the complaint against 3R and that she had told Mr AdkAdkins at the time her position was that it should bins at the time her position was that it should be dealt with under the e dealt with under the grievance procedure. She said that Mr Adkins had disagreed and said he was grievance procedure. She said that Mr Adkins had disagreed and said he was seeking legal advice. Ms Dickinson said seeking legal advice. Ms Dickinson said she had not heard further from Mr she had not heard further from Mr AdkinsAdkins, , and that if she did not hear from him by the end of the week she and that if she did not hear from him by the end of the week she would put twould put the grievance process in place and would be seeking further he grievance process in place and would be seeking further evidence to support the allegations made [255]. evidence to support the allegations made [255]. Mr Adkins responded on 19 Mr Adkins responded on 19 May [626] saying he must have misadvised Ms May [626] saying he must have misadvised Ms DickinsonDickinson,, and he did not and he did not require legal advice to inform his position. He said again his complaint against require legal advice to inform his position. He said again his complaint against 3R should be considered under the disciplinary policy because 3R should be considered under the disciplinary policy because the complaint the complaint against the claimant had been treated as such. against the claimant had been treated as such. 180. 180. On 19 May Ms Forte wrote to MOn 19 May Ms Forte wrote to Mr Adkins. We do not have the letter but r Adkins. We do not have the letter but from Mr Adkins response at [258] it appears from Mr Adkins response at [258] it appears she declined to make further she declined to make further references to safeguardingreferences to safeguarding regarding Child A’s parents. regarding Child A’s parents. He concluded: “He concluded: “There There Case No: 1601026/2022 46 will be accountability for the appalling way WHS has will be accountability for the appalling way WHS has treated SB under youtreated SB under your r leadership mark my words.” leadership mark my words.” Ms Alderman sought to intervene expressing Ms Alderman sought to intervene expressing concern about the potential impact of ongoing allegations, and counter concern about the potential impact of ongoing allegations, and counter allegations on the allegations on the wellbeing of the wellbeing of the claimant [260]claimant [260]. Mr Adkins sai. Mr Adkins said he saw this d he saw this as a threat tas a threat to stop further action. o stop further action. 181. 181. It appears that Ms Alderman suggested to Mr Adkins that they have a It appears that Ms Alderman suggested to Mr Adkins that they have a discussion and Mr Adkins emailed Ms Alderman in advance on 23 May 2022 discussion and Mr Adkins emailed Ms Alderman in advance on 23 May 2022 [263]. [263]. In that email he said that 3R on receipt of concerns from parents In that email he said that 3R on receipt of concerns from parents directs them to raise them as safeguarding directs them to raise them as safeguarding concernconcerns with the objective of s with the objective of subjecting members to subjecting members to uundue pressure and elevating the nature of the ndue pressure and elevating the nature of the alleged conduct in the minds of decision makers. He said the parental alleged conduct in the minds of decision makers. He said the parental concerns should have been addressed with the claimant and then an concerns should have been addressed with the claimant and then an investigation (if neinvestigation (if needed) through the complaints procedureeded) through the complaints procedure. He said 3R had . He said 3R had prevented the claimant from giving her version of events to safeguardingprevented the claimant from giving her version of events to safeguarding. Mr . Mr Adkins reiterated some other points and said he was seeking a resolution that Adkins reiterated some other points and said he was seeking a resolution that it be confirmed the claimant had no case to anit be confirmed the claimant had no case to answer, swer, and the school accept and the school accept that the parental concerns were not a safeguarding matter. He said Ms James that the parental concerns were not a safeguarding matter. He said Ms James should be asked to review the outcome of the safeguarding strategy meetshould be asked to review the outcome of the safeguarding strategy meeting ing to establish they were unfounded and he wouldto establish they were unfounded and he would thenthen withdraw his complaint withdraw his complaint against Ms against Ms Devonish. Devonish. Mr AdkinsMr Adkins requested a restorative meeting with the requested a restorative meeting with the parents and said that if undertaken he would not pursue his complaint with the parents and said that if undertaken he would not pursue his complaint with the police police [264].[264]. 182. 182. A discussion took place between Mr Adkins and Ms Alderman on A discussion took place between Mr Adkins and Ms Alderman on or or around 26 May around 26 May [265][265] which Ms Alderman followed up with an email. She said which Ms Alderman followed up with an email. She said again that again that the complaints against 3R would be considered under the the complaints against 3R would be considered under the grievance procedure and that if a grievance identifies misconduct it will then grievance procedure and that if a grievance identifies misconduct it will then be addressed under the disciplinbe addressed under the disciplinary procedure. ary procedure. Mr Adkins replied to say Mr Adkins replied to say again he considered that 3R should be treated the same way as again he considered that 3R should be treated the same way as his his membersmembers. . 183. 183. On 26 May 2022 Ms Alderman emailed Ms Devonish On 26 May 2022 Ms Alderman emailed Ms Devonish asking if it was asking if it was possible for a review to be undertaken possible for a review to be undertaken [267]. [267]. 184. 184. On 27 May 2022 Mr Browne met with the claimant (and Mr Adkins and On 27 May 2022 Mr Browne met with the claimant (and Mr Adkins and Ms Alderman) on Zoom. Ms Alderman) on Zoom. Mr Browne Mr Browne followed it up with a letter dated 6 June followed it up with a letter dated 6 June [[269269--270].270]. The letter said: “The letter said: “I felt it I felt it appropriate to remind you that it is important appropriate to remind you that it is important to consider pupils’ perceptions when dealing with difficult/sensitive topics in to consider pupils’ perceptions when dealing with difficult/sensitive topics in class. In response to your concern that the pupils’ comments were taken as class. In response to your concern that the pupils’ comments were taken as being completely true, I explained that the reminder wbeing completely true, I explained that the reminder was intended in general as intended in general terms and did not mean that there was acceptance that you had exactly said terms and did not mean that there was acceptance that you had exactly said the things as reported by some pupilsthe things as reported by some pupils. However, it is important for all teachers . However, it is important for all teachers to consider appropriate content of lessons and delivery to pupils.”to consider appropriate content of lessons and delivery to pupils.” 185. 185. OnOn 7 June Dr Williams provided a further occupational health report 7 June Dr Williams provided a further occupational health report stating that stating that the claimant said she had been totally exonerated and was the claimant said she had been totally exonerated and was pleased to be able to return to work, but continues to be upset about the way pleased to be able to return to work, but continues to be upset about the way in which the complaint was handledin which the complaint was handled,, and it affected her trust in her managers and it affected her trust in her managers and sand some colleagues.ome colleagues. Dr WilliamsDr Williams said he felt the claimant had done said he felt the claimant had done remarkably well consider the stress she had been through due to the remarkably well consider the stress she had been through due to the complaints made against her and had made no further appointments to speak complaints made against her and had made no further appointments to speak witwith the claimant again [627]. h the claimant again [627]. Case No: 1601026/2022 47 186. 186. On 28 June 2022 Ms James emailed Mr Adkins saying a further On 28 June 2022 Ms James emailed Mr Adkins saying a further strategy meeting would be strategy meeting would be convened [272]. The strategy meeting took place convened [272]. The strategy meeting took place on 25 August 2022 ]273on 25 August 2022 ]273––279].279]. The allegationThe allegations were found to be s were found to be ununsubstantiated, it being recorded that there was no evidence to prove or substantiated, it being recorded that there was no evidence to prove or disprove what had exactly transpired bdisprove what had exactly transpired buut also not sufficient evidence to t also not sufficient evidence to outcome the allegations as unfoundeoutcome the allegations as unfounded. It was agreed there was not sufficient d. It was agreed there was not sufficient evidence to suggest the claimant pevidence to suggest the claimant posed a risk to children. osed a risk to children. On 14 September On 14 September Ms Devonish wrote to the claimant [280] Ms Devonish wrote to the claimant [280] confirming confirming that outcome. that outcome. Grievance Grievance 187. 187. On On 5 October Mr Adkins sent an email with5 October Mr Adkins sent an email with:: ““as promised greater detail as promised greater detail of the discriminatory treatment suffered by SB at the of the discriminatory treatment suffered by SB at the hands of IR which he hands of IR which he believe should be investigated under the disciplinary procedurebelieve should be investigated under the disciplinary procedure” [284].” [284]. Mr Mr Adkins also said the claimant wanted to pursue some elements of the Adkins also said the claimant wanted to pursue some elements of the collective grievance that had been put on hold. collective grievance that had been put on hold. Ms Alderman pulled this Ms Alderman pulled this together in an together in an email of 6 October [286]email of 6 October [286] and asked for it all to be included and asked for it all to be included (including resolution sought) on one grievance form. Mr Adkins did so on (including resolution sought) on one grievance form. Mr Adkins did so on 17 17 October, apologising for the time taken [289 October, apologising for the time taken [289 –– 292].292]. 188. 188. An independent investigator was appointed,An independent investigator was appointed, Joel Williams.Joel Williams. He He interviewed interviewed the claimant the claimant on 7 Novemberon 7 November. . There is a summary of the There is a summary of the claimant’s account at [636claimant’s account at [636--639] 639] inin the subsequent investigation reportthe subsequent investigation report. . Mr J Mr J WilliamsWilliams interviewed interviewed 3R on 14 November 2022 [2933R on 14 November 2022 [293--301].301]. Mr J Mr J Williams Williams interviewed Ms Ballainterviewed Ms Ballanntine on 1 Decembertine on 1 December 22022022 and there is a summary of her and there is a summary of her interview in the investigation report at [640interview in the investigation report at [640--644644].]. Mr Redrup Mr Redrup was interviewed was interviewed on 5 December 2022 and Ms Devonish on 22 December 2022. on 5 December 2022 and Ms Devonish on 22 December 2022. Their Their interview notes are at [695interview notes are at [695--701].701]. 189. 189. Mr WilliamsMr Williams provided his report on 13 January 2023 [302provided his report on 13 January 2023 [302 and and 631631--656656]].. A grievance meeting then took place with Mr Browne on 1 March 20A grievance meeting then took place with Mr Browne on 1 March 2023. Mr 23. Mr Browne provided the grievance outcome in a letter of 16 March 2020 [657 Browne provided the grievance outcome in a letter of 16 March 2020 [657 --662]. 662]. The grievance conclusion included that in informing safeguarding The grievance conclusion included that in informing safeguarding before speaking to the claimant about the matter before speaking to the claimant about the matter it appeared that 3R was it appeared that 3R was following Welsh Government guidelinesfollowing Welsh Government guidelines and had been following the advice of and had been following the advice of Ms BallaMs Ballanntine and the Local Authority Safeguarding Officer. tine and the Local Authority Safeguarding Officer. 190. 190. The grievance report also saidThe grievance report also said [660[660--661]661]: “: “On further discussion with On further discussion with IR, it is quite clear to me that IR felt being able to tell SB that “that the IR, it is quite clear to me that IR felt being able to tell SB that “that the complaint related to the content of the lesson whecomplaint related to the content of the lesson where a parent had re a parent had subsequently raised a concern” was providing SB with more information than subsequently raised a concern” was providing SB with more information than he had given her he had given her on 12 when he stated that an allegation was being looked on 12 when he stated that an allegation was being looked into by safeguarding. IR was also of the opinion that if, as a result of providing into by safeguarding. IR was also of the opinion that if, as a result of providing slightlyslightly more information to SB, she was able to provide more relevant more information to SB, she was able to provide more relevant information from her perspective then the strategy meeting would reconvene information from her perspective then the strategy meeting would reconvene to consider this evidenceto consider this evidence… Again, on the advice of his HR Business Partner … Again, on the advice of his HR Business Partner and Principal Officer for Social Services, and Principal Officer for Social Services, IR was offering SB a preliminary IR was offering SB a preliminary meeting.meeting. IR was quite clear in his correspondence about the level of IR was quite clear in his correspondence about the level of information he was permitted to share in this meeting.”information he was permitted to share in this meeting.” 191. 191. Mr Browne concluded that 3R appeared to have followed advice and Mr Browne concluded that 3R appeared to have followed advice and followed appropriate safeguarding procedures and there was no evidence that followed appropriate safeguarding procedures and there was no evidence that Case No: 1601026/2022 48 3R had 3R had harassed the claimant. harassed the claimant. The grievance was not upheld. The claimant The grievance was not upheld. The claimant appealed the grievance outcome [663 appealed the grievance outcome [663 –– 66666]. 6]. We do not have the grievance We do not have the grievance appeal outcomeappeal outcome although understand from Ms Forte’s statement that it was although understand from Ms Forte’s statement that it was not upheld.not upheld. Discussion and Conclusions Discussion and Conclusions 1 19292.. Applying our findings of fact and the relevant law to the Applying our findings of fact and the relevant law to the issues issues identified in the List of Issues our conclusions are as follows.identified in the List of Issues our conclusions are as follows. Referring the Claimant to a safeguarding strategy meeting before any Referring the Claimant to a safeguarding strategy meeting before any internal investigationinternal investigation (harassment or direct discrimination)(harassment or direct discrimination). Which . Which includes:includes:• 3R3R’s’s decision to refer the parental complaint to Mr Redrup decision to refer the parental complaint to Mr Redrup (the (the claimant’s position being that 3R should have made a decision claimant’s position being that 3R should have made a decision that it was not a safeguarding matter following an internal that it was not a safeguarding matter following an internal investigatioinvestigation);n);• Mr Redrup’s decision to take the referral to Ms DevonishMr Redrup’s decision to take the referral to Ms Devonish (the (the claimant takes particular issue with the basis on which Mr Redrup claimant takes particular issue with the basis on which Mr Redrup presented it to Ms Devonish);presented it to Ms Devonish);• Ms DevonishMs Devonish’s’s decision to referdecision to refer itit to a Part 5 meeting to a Part 5 meeting (on the (on the basis ofbasis of her evaluation or response to the allegations that were her evaluation or response to the allegations that were before her in the parental complaint and any other information before her in the parental complaint and any other information she had been givenshe had been given)) 3R 3R’s decision to refer the parental complaint to Mr Redrup ’s decision to refer the parental complaint to Mr Redrup (the claimant’s (the claimant’s position being that 3R should have made a decision that it was not a position being that 3R should have made a decision that it was not a safeguarding matter following an internal investigation)safeguarding matter following an internal investigation) 193. 193. We do not find that the claimant has We do not find that the claimant has established facts from which weestablished facts from which we could conclude (in the absence of any other explanation) that 3Rs decision to could conclude (in the absence of any other explanation) that 3Rs decision to refer the complaint to Mr Redrup was less favourable treatment because of refer the complaint to Mr Redrup was less favourable treatment because of race. race. 3R in seeking advi3R in seeking advice from Ms Ballantine and Mr Redrup was doing ce from Ms Ballantine and Mr Redrup was doing what 3R did in the comparator caswhat 3R did in the comparator cases. es. Indeed, it is the claimant’s own case Indeed, it is the claimant’s own case that this is 3R’s “modus operandi.”that this is 3R’s “modus operandi.” 194. 194. But inBut in any eventany event we heard evidence from all the relevant witnesses and we heard evidence from all the relevant witnesses and wwe are e are in a position to make positive findingsin a position to make positive findings of fact of fact about what happened about what happened and why. Wand why. Wee find that find that the the respondents have establishedrespondents have established thatthat the treatment the treatment was in no sense whatsoever because of race. was in no sense whatsoever because of race. 3R3R, relatively new to dealing , relatively new to dealing with potential safeguarding issues,with potential safeguarding issues, was worried to see the parental complaint was worried to see the parental complaint headed “urgent headed “urgent –– safeguarding matter” thasafeguarding matter” that came from a school governor and t came from a school governor and a police officera police officer. 3R. 3R resolved to seek adviceresolved to seek advice,, as as he had done and would do in he had done and would do in other cases. other cases. Ms Ballantine Ms Ballantine had some potential concerns on her understanding had some potential concerns on her understanding of the of the complaintcomplaint, , and advised the claimant to contact Mr Redrupand advised the claimant to contact Mr Redrup.. ThatThat was was her understanding of the appropriate process.her understanding of the appropriate process. LikewiseLikewise,, to contact Mr Redrupto contact Mr Redrup was also 3R’s understanding of the appropriate process if there was a was also 3R’s understanding of the appropriate process if there was a potential safeguarding concern. potential safeguarding concern. 3R therefore made that contact with Mr 3R therefore made that contact with Mr Redrup. Redrup. 3R was reacting to the parental complaint he had received3R was reacting to the parental complaint he had received,, following following Case No: 1601026/2022 49 the advice he received and the advice he received and applying applying his understanding of the procedureshis understanding of the procedures. He . He waswas doingdoing what he had done in other caseswhat he had done in other cases. . Ms Ballantine would have given Ms Ballantine would have given the same advice and 3R would have taken the same stepthe same advice and 3R would have taken the same stepss if faced with the if faced with the same material circumstances and a teacher of another racesame material circumstances and a teacher of another race as indeed as indeed hhappened in the comparator casesappened in the comparator cases. . 195. 195. The policies and procedures do not permit 3R to undertake his own The policies and procedures do not permit 3R to undertake his own investigationinvestigation and 3R understood that to be the caseand 3R understood that to be the case. Where there is a . Where there is a potential safeguarding concernpotential safeguarding concern, as explained by Mr Redrup in his , as explained by Mr Redrup in his evidence,evidence, the policies and procedures give primacy to the safeguarding referral and the policies and procedures give primacy to the safeguarding referral and assessmentassessment because of the potential because of the potential need need fofor a police investigation and alsor a police investigation and also to minimise the risk of contact with complainants and witnesses to minimise the risk of contact with complainants and witnesses whilst there is whilst there is a policea police assessment andassessment and thereafter, if there is no police investigation,thereafter, if there is no police investigation, to allow to allow the appropriate statutory authorities to assess the appropriate statutory authorities to assess how best to take the concern how best to take the concern forward. forward. 3R3R wouwould have taken the same stepld have taken the same step ofof not investigatnot investigatinging for himself for himself but but insteadinstead seekseekinging advice and followadvice and followinging that advice that advice if if he facedhe faced similar similar circumstancescircumstances but involving a teacher of a different race. but involving a teacher of a different race. 196. 196. The policies and procedures do permit enquiries as to what is alleged The policies and procedures do permit enquiries as to what is alleged to have occurred, when, where and who was involved/present. But that was to have occurred, when, where and who was involved/present. But that was all evident from the all evident from the parental complaintparental complaint which 3R was therefore able to forward which 3R was therefore able to forward to JR. to JR. We do not accept that such enquiries extend, for example, to We do not accept that such enquiries extend, for example, to interviewing the claimant. interviewing the claimant. The policies and procedures do make The policies and procedures do make provision for provision for the potential conclusion that it was impossible for the allegation to be true (or the potential conclusion that it was impossible for the allegation to be true (or equivalent wording)equivalent wording).. BBut even thenut even then ttheyhey provide forprovide for such a conclusionsuch a conclusion to be to be discussed with the LADO/ lead child protection officer. discussed with the LADO/ lead child protection officer. In any event, In any event, and and this this was not a situation in which 3R could havewas not a situation in which 3R could have simplysimply concluded that beyond any concluded that beyond any doubt it was impossible for the allegations to be true. doubt it was impossible for the allegations to be true. Mr Adkins himself Mr Adkins himself conceded the allegations needed to be investigated (albeit he says they were conceded the allegations needed to be investigated (albeit he says they were not safeguarding matters). not safeguarding matters). Again, we consider that 3R would have taken the Again, we consider that 3R would have taken the ststeps that he did/would not have undertaken his own investigation eps that he did/would not have undertaken his own investigation when faced when faced with the same circumstances but involving a teacher of a different race. with the same circumstances but involving a teacher of a different race. This This was not less favourable treatment because of race. was not less favourable treatment because of race. 197. 197. Turning to the harassment complaint, we accept that Turning to the harassment complaint, we accept that being referred to being referred to safeguarding/Mr Redrup was unwanted conduct from the perspective of the safeguarding/Mr Redrup was unwanted conduct from the perspective of the claimantclaimant. But we do not consider that the claimant has established a prima . But we do not consider that the claimant has established a prima facie case that the referral was facie case that the referral was relaterelated to raced to race. But in any event we have been . But in any event we have been able to able to assess the evidence and make findings of fact and assess the evidence and make findings of fact and find the find the respondents have established through cogent evidence it was not related to respondents have established through cogent evidence it was not related to racerace. . 198. 198. In the direct race discrimination complaint above we have already In the direct race discrimination complaint above we have already analysed 3R’s mental processes to find that analysed 3R’s mental processes to find that the the referral was not made referral was not made because ofbecause of (in the sense of being (in the sense of being materially influenced bymaterially influenced by)) race butrace but waswas because 3R saw the complaintbecause 3R saw the complaint receivedreceived as a poteas a potential safeguarding concern, ntial safeguarding concern, 3R’s3R’s practice was to seek advicepractice was to seek advice particularly as he did not consider himself particularly as he did not consider himself experienced in safeguarding mattersexperienced in safeguarding matters, , 3R3R then had advice from HR to contact then had advice from HR to contact Mr Redrup, Mr Redrup, andand indeedindeed 3R3R believed the procedures and policies meant he believed the procedures and policies meant he should contact Mr Redrupshould contact Mr Redrup for advicefor advice.. 199. 199. The test of “related to race” is of course broaderThe test of “related to race” is of course broader than the test of than the test of “because of race”“because of race” but nonethelessbut nonetheless the “related to”the “related to” needs to beneeds to be properlyproperly Case No: 1601026/2022 50 established. established. We do not find that it We do not find that it has been. has been. The referralThe referral by 3Rby 3R did notdid not,, in in our judgementour judgement,, relate to the claimant’srelate to the claimant’s race of being race of being bblack British. lack British. That the That the claimant’s race as being claimant’s race as being bblack British is there as a background fact does not, lack British is there as a background fact does not, in our judgement, in our judgement, make the referral to Mr Redrup related to race. make the referral to Mr Redrup related to race. OOne ne allegation made in the parental complaintallegation made in the parental complaint waswas thethe alleged inappropriate use alleged inappropriate use of the N wordof the N word. However, that does not, in our judgement. However, that does not, in our judgement make the referral make the referral itself related to race.itself related to race. That part of the parental complaint was about the alleged That part of the parental complaint was about the alleged inappropriate use of the wordinappropriate use of the word.. Furthermore, thatFurthermore, that aspect of the aspect of the parental parental complaint was complaint was not not particularly operative in 3R’s mind or his actionsparticularly operative in 3R’s mind or his actions and he and he had not looked at had not looked at its detail in any its detail in any forensic senseforensic sense. . 3R3R was reacting to the was reacting to the wholewhole parentalparental complaint, how it was headed, and who it had come from. complaint, how it was headed, and who it had come from. We We also accept Ms Ballantine’s evidence as to the particular aspects of the also accept Ms Ballantine’s evidence as to the particular aspects of the parental complaint that causeparental complaint that causedd her potential concernher potential concern.a. A. Againgain this partithis particular cular allegationallegation was not her key focus. was not her key focus. Furthermore nFurthermore neither 3R nor Ms Ballantine either 3R nor Ms Ballantine termedtermed or sawor saw ththe complaint as beinge complaint as being (compared with what happened later)(compared with what happened later) the claimant “conveying personal views that were racist.” the claimant “conveying personal views that were racist.” 200. 200. The The cclaimant asserts that laimant asserts that the referral of a complaintthe referral of a complaint which which assertasserteded she had allegedly undermined trust in the policeshe had allegedly undermined trust in the police, , and and thatthat allegedly allegedly undermined her ability to safeguard childrenundermined her ability to safeguard children,, waswas born out of racially born out of racially stereotyped beliestereotyped beliefsfs concerning concerning bblack people’s attitudes towards the police.lack people’s attitudes towards the police. The claimant also asserts it was assumed that she was a threat to The claimant also asserts it was assumed that she was a threat to a group of a group of predominantly white ppredominantly white pupils in a way that a white teacher having the same upils in a way that a white teacher having the same discussion about Sarah Everard would not have been discussion about Sarah Everard would not have been perceived. She says perceived. She says this was conscious or subconscious bias. this was conscious or subconscious bias. 201. 201. We do not find on the evidencWe do not find on the evidencee before usbefore us or infer on the evidence or infer on the evidence before us,before us, that this was operating, whether consciously or subconsciously in that this was operating, whether consciously or subconsciously in the minds of 3R or Ms Ballantine. As already stated, we do not consider that the minds of 3R or Ms Ballantine. As already stated, we do not consider that 3R forensically analysed the individual content of the parental complaint an3R forensically analysed the individual content of the parental complaint and d we find that 3R we find that 3R would have behaved in that manner whatever the race of the would have behaved in that manner whatever the race of the subject of the complaint. subject of the complaint. One of One of Ms BallantineMs Ballantine’s concerns in giving her advice’s concerns in giving her advice was was a concern about whether the claimant had allegedly a concern about whether the claimant had allegedly advised pupils not to advised pupils not to trust the police and whtrust the police and whether that had the potential to cause harm. ether that had the potential to cause harm. But we do But we do not find that in doing so she was operating on the basis of racially stereotyped not find that in doing so she was operating on the basis of racially stereotyped beliefs concerning beliefs concerning bblack people’s attitudes towards the police (or that in turn lack people’s attitudes towards the police (or that in turn 3R was doing so). 3R was doing so). We find it was a concern that We find it was a concern that Ms BallantineMs Ballantine would have would have held whatever the race of the subject of the allegation. held whatever the race of the subject of the allegation. It vested in It vested in a concern a concern of aof a potentialpotential risk of pupils not trustinrisk of pupils not trusting police in circumstances where g police in circumstances where pupilspupils may need to do so. may need to do so. 20 2022.. We also address some further points made on behalf of the claimant. We also address some further points made on behalf of the claimant. First, wFirst, whilst hilst Mr Redrup is not the LADOMr Redrup is not the LADO, w, we are satisfied that the procedure e are satisfied that the procedure that was in place that was in place in practice was to contact Mr Redrup (or hisin practice was to contact Mr Redrup (or his job sharejob share colleague) in the first instance and that 3R in doing socolleague) in the first instance and that 3R in doing so (and Ms Ballantine in (and Ms Ballantine in so recommending) so recommending) waswas doing whatdoing what had been done in other comparator had been done in other comparator cases cases and would be his standard practice. Indeedand would be his standard practice. Indeed,, even Mr Adkins refers to it as even Mr Adkins refers to it as being 3R’s “modus operandi.” being 3R’s “modus operandi.” 20 2033.. Second, Mr Adkins argues that the respondents have not produced Second, Mr Adkins argues that the respondents have not produced evidence that a white member of staff woevidence that a white member of staff would be subject to the same treatment uld be subject to the same treatment on the basis of the same baseless complaint. That is not howeveron the basis of the same baseless complaint. That is not however how the how the burden of proof works. Moreoverburden of proof works. Moreover,, the analysis presupposes that the parental the analysis presupposes that the parental Case No: 1601026/2022 51 complaint was a baseless complaint complaint was a baseless complaint and/or that it was known to be a and/or that it was known to be a bbaseless complaint. But the parental complaint vested in what the parent was aseless complaint. But the parental complaint vested in what the parent was asserting asserting their child had saidtheir child had said,, and which they were asserting gave cause for and which they were asserting gave cause for potential concern.potential concern. Even Mr Adkins accepted the complaint would need Even Mr Adkins accepted the complaint would need investigating (albeit he says it was not a safeguarding complaint). Even Mr investigating (albeit he says it was not a safeguarding complaint). Even Mr Adkins appears therefore to accept it Adkins appears therefore to accept it could not be deemed “baseless” at the could not be deemed “baseless” at the point the complaint was made and received. point the complaint was made and received. The whole poThe whole point of the process int of the process being followed was for a safeguarding risk/assessment to be done and for the being followed was for a safeguarding risk/assessment to be done and for the complaint to then be investigated in the proper forumcomplaint to then be investigated in the proper forum. W. We are satisfied that is e are satisfied that is what was being legitimately donewhat was being legitimately done,, and would have happened irrespective of and would have happened irrespective of the rathe race of the member of staff concerned. ce of the member of staff concerned. 20 2044.. The harassment complaint would not succeed on the “related to” point. The harassment complaint would not succeed on the “related to” point. However, we will However, we will briefly address the question of purpose and/or effect. briefly address the question of purpose and/or effect. We do We do not find that 3R made the referral to 3R with the purpose of not find that 3R made the referral to 3R with the purpose of creating an creating an intimidating, hostile, degrading, humiliating or offensive environment for the intimidating, hostile, degrading, humiliating or offensive environment for the claimantclaimant or violating the claimant’s dignityor violating the claimant’s dignity. . We have not accepted the We have not accepted the claimant’s assertion that 3claimant’s assertion that 3R was somehow taking “gratification” from the R was somehow taking “gratification” from the claimant’s situationclaimant’s situation. . We also do not accept, which appears to be asserted, We also do not accept, which appears to be asserted, that 3R had some kind of prethat 3R had some kind of pre--existing existing plan or intent to harass the claimant plan or intent to harass the claimant and that he then used the parental complaint as a and that he then used the parental complaint as a basis to do sobasis to do so or that 3R or that 3R intended to pursue the complaint as a safeguarding matterintended to pursue the complaint as a safeguarding matter because 3R saw it because 3R saw it as a way to elevate the nature of the complaint/alleged conduct in the mind of as a way to elevate the nature of the complaint/alleged conduct in the mind of subsequent decision makerssubsequent decision makers. . 205. 205. We also do not find that 3R We also do not find that 3R deliberately failed to tell Mr Redrupdeliberately failed to tell Mr Redrup (or (or anyone elseanyone else at the strategy meetingat the strategy meeting)) details of the claimant’s ethnicity details of the claimant’s ethnicity which which as we understand it is alleged to be as we understand it is alleged to be part of part of a scenario ofa scenario of manipulating the manipulating the process against the claimant. process against the claimant. Mr RedrupMr Redrup (as he acknowledged(as he acknowledged)), and any , and any reader, would have some idea reader, would have some idea from the fact it was alleged that from the fact it was alleged that the claimant the claimant had said it was ok for her to use the N wordhad said it was ok for her to use the N word due to her racedue to her race.. The minutes of The minutes of the strategy meeting have tothe strategy meeting have to be treated with caution because of the odd way be treated with caution because of the odd way in which they are structured. in which they are structured. We accept 3R’s evidence he could not recall We accept 3R’s evidence he could not recall being specifically asked at the strategy meeting. being specifically asked at the strategy meeting. We We accept Mr Redrup’s accept Mr Redrup’s evidence that evidence that the minutes are likely to show CI Allsopp the minutes are likely to show CI Allsopp knowinknowing that the g that the claimant was BAME but not knowing the exact claimant was BAME but not knowing the exact way she would define her way she would define her ethnicity. ethnicity. 206. 206. We also do not find that 3R was in some way colluding with 3R or We also do not find that 3R was in some way colluding with 3R or indeed the parents of Child Aindeed the parents of Child A.. 3R was reacting to the parental complaint as it 3R was reacting to the parental complaint as it came to came to himhim and in a way, as we have found, he would have done and did do and in a way, as we have found, he would have done and did do with other potential safeguarding matters.with other potential safeguarding matters. It is said that 3R repeatedly stated It is said that 3R repeatedly stated that the claimant refused to meet with him as an attempt to undermine the that the claimant refused to meet with him as an attempt to undermine the claimant’s professional integrity anclaimant’s professional integrity and drive the process forward against her. d drive the process forward against her. We do not accept that was the caseWe do not accept that was the case. In our view. In our view 3R3R made a reasonablemade a reasonable management request management request to the to the claimant claimant to meetto meet. The claimant did decline that . The claimant did decline that twice unless it was ontwice unless it was on the terms she outlinedthe terms she outlined,, such that he had to ultimately such that he had to ultimately go to her classroomgo to her classroom.. 20 2077.. To avoid duplication in the setting out of our reasoning we have dealt To avoid duplication in the setting out of our reasoning we have dealt with separately below the complaint about 3R not with separately below the complaint about 3R not making making enquiries of the enquiries of the claimant. But the themes do overlap and we do not ficlaimant. But the themes do overlap and we do not find 3R’s actions in that nd 3R’s actions in that regard are indicative of any malintent on the part of 3R. regard are indicative of any malintent on the part of 3R. Case No: 1601026/2022 52 20 2088.. In terms of “effect” we accept that the claimant perceived the referral to In terms of “effect” we accept that the claimant perceived the referral to safeguarding as having the proscribed effectsafeguarding as having the proscribed effect and subjectively her distress is and subjectively her distress is understandableunderstandable. However, . However, in thein the particularparticular circumstances we do not consider circumstances we do not consider it reasonable for the conduct to have the effect of creating an it reasonable for the conduct to have the effect of creating an intimidating, intimidating, hostile, degrading, humiliating or offensive environment.hostile, degrading, humiliating or offensive environment. We say thiWe say this becauses because,, as the guidance, policies and proceduresas the guidance, policies and procedures set outset out,, this was a process this was a process to be to be followed where potential safeguarding concerns were raised relating to a followed where potential safeguarding concerns were raised relating to a teacherteacher.. WWhat was happening to the claimant, as uncomfortable and hat was happening to the claimant, as uncomfortable and distressing as it was, was the application of that process. distressing as it was, was the application of that process. Schools and Schools and statutory authorities have tostatutory authorities have to, in general,, in general, be able to be able to follow legitimate follow legitimate safeguarding processes without beingsafeguarding processes without being found to be committfound to be committing unlawful ing unlawful harassment harassment as a matter of course. As Ms O’Callaghan drew to our attention, as a matter of course. As Ms O’Callaghan drew to our attention, the point was well put (albeit in the different context of the point was well put (albeit in the different context of a priesta priest’s license to ’s license to officiate)officiate) by the by the ccourt of ourt of aappeal in ppeal in Pemberton Pemberton v Inwood [2018] ICRv Inwood [2018] ICR 12912911 where it was said:where it was said: “I have no difficulty understanding how profoundly upsetting Canon Pemberton must find the Church of England's official stance on same-sex marriage and its impact on him. But it does not follow that it was reasonable for him to regard his dignity as violated, or an "intimidating, hostile, degrading, humiliating or offensive" environment as having been created for him, by the Church applying its own sincerely-held beliefs in his case, in a way expressly permitted by Schedule 9 of the Act. If you belong to an institution with known, and lawful, rules, it implies no violation of dignity, and is not cause for reasonable offence, that those rules should be applied to you, however wrong you may believe them to be. Not all opposition of interests is hostile or offensive. It would be different if the Bishop had acted in some way which impacted on Canon Pemberton’s dignity, or created an adverse environment for him, beyond what was involved in communicating his decisions; but that was found by the ET not to be the case.” Mr Redrup’s decision to take the complaint to Ms Devonish Mr Redrup’s decision to take the complaint to Ms Devonish (the claimant takes (the claimant takes particular issue with the way in which iparticular issue with the way in which it t was presented to Ms Devonish)was presented to Ms Devonish) 20 2099.. WeWe do not do not findfind the claimantthe claimant hashas established a prima facie case of less established a prima facie case of less favourable treatment because of racefavourable treatment because of race,, in Min Mrr Redrup deciding to refer on the Redrup deciding to refer on the parental complaint to Ms Devonish. parental complaint to Ms Devonish. We could not see anything to say that We could not see anything to say that Mr Mr Redrup Redrup would not have referred on an equiwould not have referred on an equivalent valent complaint in respect of a complaint in respect of a teacher of a different race. In any event we find that the respondents have teacher of a different race. In any event we find that the respondents have established through cogent evidence that Mr Redrup’s action were not established through cogent evidence that Mr Redrup’s action were not because of racebecause of race.. 2 21010.. We accept Mr Redrup’s witness evidence aboveWe accept Mr Redrup’s witness evidence above,, as to how he as to how he saw saw the complaintthe complaint. W. We accept and finde accept and find Mr RedrupMr Redrup genuinely considered that the genuinely considered that the parental complaint was a potential parental complaint was a potential partpart 55 safeguardingsafeguarding mattermatter in raising in raising questions, if true, as to the claimant’s suitability to work with childrenquestions, if true, as to the claimant’s suitability to work with children. . We We accept and find that Mr Redrup would have accept and find that Mr Redrup would have viewed the parental complaint andviewed the parental complaint and would havewould have taken the same action in contacting Ms Devonish if faced with a taken the same action in contacting Ms Devonish if faced with a complaint aboucomplaint about a teacher of a different race but otherwise in the same t a teacher of a different race but otherwise in the same Case No: 1601026/2022 53 material circumstances. material circumstances. Like 3R Mr Redrup was not able to undertake his Like 3R Mr Redrup was not able to undertake his own investigation firstown investigation first. Mr Redrup . Mr Redrup was assessing things from the perspective was assessing things from the perspective of the childof the child and based on the parental complaintand based on the parental complaint. We are . We are satisfied Mr Redsatisfied Mr Redrup rup would would likewise likewise have not undertaken further investigationshave not undertaken further investigations before passing the before passing the referral on to Ms Devonish,referral on to Ms Devonish, if faceif facedd with with the equivalent complaint and a the equivalent complaint and a teacher ofteacher of a different race. a different race. 2 21111.. We also do not find that the We also do not find that the complaint was presentedcomplaint was presented by Mr Redrupby Mr Redrup in in some particular way to Ms Devonish so as to influence her. some particular way to Ms Devonish so as to influence her. The complaint The complaint was there to be read and assessed for itself and we accept that Ms Devonish was there to be read and assessed for itself and we accept that Ms Devonish made her own assessment of it. made her own assessment of it. 2 21212.. Turning to the harassment complaintTurning to the harassment complaint,, we accept that Mr Redrupwe accept that Mr Redrup’s ’s action,action, inin passing the referral on to Ms Devonishpassing the referral on to Ms Devonish,, was unwanted was unwanted conductconduct from from the perspective of the claimantthe perspective of the claimant. . But wBut we do not find that the claimant has e do not find that the claimant has established a prima face case that established a prima face case that this was related to racethis was related to race. I. In any eventn any event we we would find the respondents have established through cogent evidence that it would find the respondents have established through cogent evidence that it was not. was not. 2 21133.. Mr Redrup did not make his assessment Mr Redrup did not make his assessment of theof the complaint relating to complaint relating to thethe alleged use of the N word alleged use of the N word based on the claimant’s race. based on the claimant’s race. Mr Redrup’s Mr Redrup’s evaluation was based onevaluation was based on,, if the complaint were correct, the perspective of the if the complaint were correct, the perspective of the childchild, the concerns in that regard raised in the parental complaint, the concerns in that regard raised in the parental complaint,, and the and the potential for the potential for the use of the word to, in Mr Redrup’s viewuse of the word to, in Mr Redrup’s view (as he said in cross (as he said in cross examination)examination), create racism, create racism in how it was thein how it was then reacted ton reacted to/further referred to or /further referred to or usedused. . It was about the use of the wordIt was about the use of the word to pupils in a class as alleged,to pupils in a class as alleged, and and thethe potentialpotential consequentialconsequential impact on others, impact on others, and and not aboutnot about or related toor related to the the claimant’s raceclaimant’s race. . 21 2144.. WeWe alsoalso do not find on the evidence before usdo not find on the evidence before us,, or infer on the or infer on the evidence before us, thatevidence before us, that racially stereotyped beliefs concerning black people’s racially stereotyped beliefs concerning black people’s attitudes towards the policeattitudes towards the police were were operating, whether consciously or operating, whether consciously or subconsciously in the minds of subconsciously in the minds of Mr RedrupMr Redrup.. As stated, As stated, Mr Redrup Mr Redrup was focused was focused on the potential impact on the potential impact of what wasof what was allegedlyallegedly said on children. said on children. We accept his We accept his evidence that he would have held the concerns he did about the allegeevidence that he would have held the concerns he did about the alleged d comments relating to the police irrespective of the race of the teacher comments relating to the police irrespective of the race of the teacher concerned. concerned. 21 2155.. We also We also would not find that Mr Redrup had the intention of creating the would not find that Mr Redrup had the intention of creating the proscribed effect. We do not find that he was seeking to cause harm to the proscribed effect. We do not find that he was seeking to cause harm to the claimant or was aclaimant or was acting cting in consort with or on the direction of 3R. Mr Redrup in consort with or on the direction of 3R. Mr Redrup was independently exercising his was independently exercising his own own judgementjudgement asas part of his part of his rolerole.. 21 2166.. Whilst again we accept that the claimant would perceive Mr Redrup’s Whilst again we accept that the claimant would perceive Mr Redrup’s actions in passing on the referral to Ms Devonish as having the proscribed actions in passing on the referral to Ms Devonish as having the proscribed effect, effect, overalloverall in our judgementin our judgement it is not reasonable for the conduct to be seen it is not reasonable for the conduct to be seen to have that effect. to have that effect. Mr Redrup Mr Redrup was was applying and following theapplying and following the statutorystatutory safeguarding processsafeguarding process. A. As distressing as that understandably is to the s distressing as that understandably is to the claimant, claimant, it is not reasonable to regard the application of it is not reasonable to regard the application of that process as that process as having a harassing effect. having a harassing effect. 21 2177.. We alsoWe also address some other allegations made by the claimant relating address some other allegations made by the claimant relating to Mr Redrupto Mr Redrup. . We do not accept the assertion that Mr Redrup engaged in the We do not accept the assertion that Mr Redrup engaged in the Case No: 1601026/2022 54 selection of pupils for the preliminary enquiries undertaken b selection of pupils for the preliminary enquiries undertaken by Ms Prosser as y Ms Prosser as a means to a means to “fit up” the claimant based on racial prejudices. Part of Mr “fit up” the claimant based on racial prejudices. Part of Mr Redrup’s role is to give advice. Redrup’s role is to give advice. We accept heWe accept he genuinelygenuinely suggested suggested an an approach based on the geography of the room and who was most likely to approach based on the geography of the room and who was most likely to hearhear. There are . There are different ways a selection could be undertakendifferent ways a selection could be undertaken. I. It was a t was a genuine, practical suggestion on Mr Redrup’s part. genuine, practical suggestion on Mr Redrup’s part. 21 2188.. Further,Further, dduring the course ofuring the course of the first strategy meeting we do not the first strategy meeting we do not accept that Mr Redrup accept that Mr Redrup was forcing a view on others or dismissing concerns of was forcing a view on others or dismissing concerns of others about others about not having input from the claimant. The minutes must be read not having input from the claimant. The minutes must be read with care because they do not follow the actual sequence of the meewith care because they do not follow the actual sequence of the meetingting.. WWe e accept that Mr Redrup simply stated his accept that Mr Redrup simply stated his opinion, giving his justification, which opinion, giving his justification, which is the very purpose of the multi agency strategy meeting.is the very purpose of the multi agency strategy meeting. Mr RedrupMr Redrup had no had no particular authority over anyoneparticular authority over anyone,, and the decision ultimately was that of Ms and the decision ultimately was that of Ms DevonishDevonish as DOSas DOS.. The emails between Ms Devonish and Mr Redrup show The emails between Ms Devonish and Mr Redrup show she was the decision maker in the safeguarding process.she was the decision maker in the safeguarding process. 21 2199.. As already stated wAs already stated we e also do not find that Mr Redrup (or indeed 3R) also do not find that Mr Redrup (or indeed 3R) declined to cdeclined to clarify the claimant’s ethnicity at the strategy meeting when larify the claimant’s ethnicity at the strategy meeting when mentioned by Chief Inspector Allsopp. mentioned by Chief Inspector Allsopp. We We do not accept the allegation that it do not accept the allegation that it was a deliberate omission to prejudice the claimant and ensure was a deliberate omission to prejudice the claimant and ensure the complaint the complaint as was found to be substantiated. The claimant asserts that there is no as was found to be substantiated. The claimant asserts that there is no evidence these things are standard practice in a strategy meeting andevidence these things are standard practice in a strategy meeting and therefore suggest less favourable treatment because of race. But againtherefore suggest less favourable treatment because of race. But again,, that that misplaces the burden of proofmisplaces the burden of proof. Furthermore, neither the claimant nor Mr . Furthermore, neither the claimant nor Mr Adkins can actually give evidence about or assert what is standard practice at Adkins can actually give evidence about or assert what is standard practice at a strategy meeting. a strategy meeting. 2 22020.. WWe do not accept there was anything unusual or an abuse of position e do not accept there was anything unusual or an abuse of position in Mr Redrup raising in Mr Redrup raising the complaint with Ms Devonish rather than it being the complaint with Ms Devonish rather than it being passed to her by 3R as headteacher. passed to her by 3R as headteacher. The policy and guidance documents doThe policy and guidance documents do in placesin places refer to information sharing and evaluation between the LADO and refer to information sharing and evaluation between the LADO and the headteacher. Ms Devonish as DOS had delegated authority as LADO. the headteacher. Ms Devonish as DOS had delegated authority as LADO. Mr Mr Redrup is of course not the LADO or the DOS but we accept his evidence that Redrup is of course not the LADO or the DOS but we accept his evidence that his role was in part liaison and he did athis role was in part liaison and he did at that time that time sometimes pass referrals on sometimes pass referrals on as he did here. as he did here. Ms Devonish did not say otherwise Ms Devonish did not say otherwise and was of course free to and was of course free to contact 3R as she saw fit in the exercise of her own independent functions. contact 3R as she saw fit in the exercise of her own independent functions. 2 22121.. We also do not accept the allegaWe also do not accept the allegation that Mr Redrup tion that Mr Redrup deliberatelydeliberately failed failed toto recuse himselfrecuse himself,, and instead manipulated the process to get an outcome he and instead manipulated the process to get an outcome he desired. desired. We accept We accept Mr Redrup’sMr Redrup’s evidence that he told Ms Devonish of his evidence that he told Ms Devonish of his professional connection to the father of Child Aprofessional connection to the father of Child A,, and she told him there was and she told him there was no conflictno conflict. . We deal with the complaints about the withholding of information We deal with the complaints about the withholding of information from the claimant further below. But we do not findfrom the claimant further below. But we do not find, as alleged by the , as alleged by the claimant, that Mr Redrup agreed or acted in consort with 3R to withhold claimant, that Mr Redrup agreed or acted in consort with 3R to withhold details with the purpose of intimidating thedetails with the purpose of intimidating the claimant on the basis of her race. claimant on the basis of her race. Ms Devonish’s Ms Devonish’s decisiondecision to refer the concern to a Part 5 meeting to refer the concern to a Part 5 meeting (on the basis of(on the basis of her evaluation or response to the allegations that were before her in the parental her evaluation or response to the allegations that were before her in the parental complaint and any other information she had been given)complaint and any other information she had been given) 2 22222.. We have found as a matter of fact that Ms DevonishWe have found as a matter of fact that Ms Devonish made a decision made a decision to to engage Part 5 engage Part 5 pproceduresrocedures either theither the e dayday of the referralof the referral or or early early the next the next Case No: 1601026/2022 55 morning morning.. We would not find that the claimant has established a prima facie We would not find that the claimant has established a prima facie case of less favourable treatment because of racase of less favourable treatment because of race. The comparator cases put ce. The comparator cases put forward were of white teachers similarly referred to a strategy meeting, with forward were of white teachers similarly referred to a strategy meeting, with the exception of the exception of comparator comparator 11. . The The comparator evidence iscomparator evidence is not evidence that not evidence that we consider is indicative of less favourable treatment because of race.we consider is indicative of less favourable treatment because of race. Three Three went to went to strategy meetings, and the fourth strategy meetings, and the fourth (comparator 1) (comparator 1) was referred to was referred to safeguarding but found not to meet the thresholdsafeguarding but found not to meet the threshold for the reasons givenfor the reasons given on its on its own particular factsown particular facts. . None of the cases are in our judgement true parallelsNone of the cases are in our judgement true parallels. . They are They are individual decisions made on their own facts and include, on their individual decisions made on their own facts and include, on their particular facts, white teachersparticular facts, white teachers beingbeing referred to referred to part 5 meetingpart 5 meetingss tootoo. . 22 2233.. But if we are wrong, iBut if we are wrong, in any event we would find that the respondent n any event we would find that the respondent has, through cogent evidence, showhas, through cogent evidence, shownn a nona non--discriminatory reason for the discriminatory reason for the treatment complained about. treatment complained about. We accept Ms Devonish’s evidence as to her We accept Ms Devonish’s evidence as to her analysis of the parental complaanalysis of the parental complaintint,, and that she and that she considered that the considered that the allegationsallegations,, if trueif true,, had the potential to cause emotional harm to children and had the potential to cause emotional harm to children and may not be suitable to work as a teacher. Ms Devonish was concerned that may not be suitable to work as a teacher. Ms Devonish was concerned that the pupils may not have the the pupils may not have the maturitymaturity to understand the implications oto understand the implications of using f using the N word the N word which could lead to harmwhich could lead to harm; the alleged comments about the police; the alleged comments about the police could lead to children not trusting the police when in a situation they needed could lead to children not trusting the police when in a situation they needed toto; and the alleged words regarding LBGTQIA; and the alleged words regarding LBGTQIA+ and a particular pupil could+ and a particular pupil could impact on impact on a child wha child who was struggling with their sexuality.o was struggling with their sexuality. We accept that this We accept that this was Ms Devonish’s genuine reasoning and was her own reasoning having was Ms Devonish’s genuine reasoning and was her own reasoning having reflected on the allegations in the parental complaint. We do not find that reflected on the allegations in the parental complaint. We do not find that Ms Ms Devonish Devonish was acting at the behest of was acting at the behest of either 3R or Mr Redrup.either 3R or Mr Redrup. Ms Devonish is Ms Devonish is a qualified social worker and was exercising her professional responsibilities. a qualified social worker and was exercising her professional responsibilities. We accept and find Ms Devonish would have undertaken the same analysis We accept and find Ms Devonish would have undertaken the same analysis and made the same decision if faced with a teacher of a different and made the same decision if faced with a teacher of a different race. race. 22 2244.. Turning to the harassment complaint, we accept the decision to refer to Turning to the harassment complaint, we accept the decision to refer to a Part 5 strategy meeting was unwanted conducta Part 5 strategy meeting was unwanted conduct when assessed from the when assessed from the claimant’s positiclaimant’s position. on. We do not find that Ms DevonishWe do not find that Ms Devonish made made her her assessment assessment of the of the specific element of the specific element of the complaint relating to the alleged use of the N complaint relating to the alleged use of the N word based onword based on/related to/related to the claimant’s race. the claimant’s race. We take account that We take account that Ms Ms Devonish said she did not know the claimant’s raceDevonish said she did not know the claimant’s race or ask questions or make or ask questions or make assumptions about assumptions about the claimant’sthe claimant’s racerace. We . We cannot accept cannot accept that assertionthat assertion.. IIt t would have beenwould have been apparent to Ms Devonishapparent to Ms Devonish,, bearing in mind thebearing in mind the actualactual allegation was the claimant had said it was ok for her to use the N wordallegation was the claimant had said it was ok for her to use the N word because of her racebecause of her race,, that the claimant was likely to be black or minority that the claimant was likely to be black or minority ethethnicnic. But we . But we find thisfind this reflects the fact that Ms Devonish’sreflects the fact that Ms Devonish’s essentialessential focus focus was on the potential impact of the alleged expression on was on the potential impact of the alleged expression on vulnerable pupils vulnerable pupils rather thanrather than on the claimant oron the claimant or the claimant’s race.the claimant’s race. 225. 225. WeWe dodo also take into accountalso take into account in our analysis of both the direct in our analysis of both the direct discrimination and the harassment complaintsdiscrimination and the harassment complaints thatthat Ms Devonish later (iMs Devonish later (i..ee. . not not at this time butat this time but after the professional strategy meeting) after the professional strategy meeting) wrote that a pupil had wrote that a pupil had raised concerns that the claimant had conveyed personal viewsraised concerns that the claimant had conveyed personal views that were that were racist. Ms Devonish’sracist. Ms Devonish’s evidence is that that choice of words could evidence is that that choice of words could misrepresent what she meant which misrepresent what she meant which was that the language allegedly used by was that the language allegedly used by the claimant could be considered racist (or discriminatory or offensive)the claimant could be considered racist (or discriminatory or offensive) and and she did not mean to say or sshe did not mean to say or suggest that the claimant was racist.uggest that the claimant was racist. She said her She said her concernconcern, which we accept,, which we accept, was about how then a child could was about how then a child could potentially potentially use use the word in an inappropriate way.the word in an inappropriate way. Ms Devonish’sMs Devonish’s subsequent poorsubsequent poor choice of choice of Case No: 1601026/2022 56 wording after the strategy meeting is not a complaint before us of direct race wording after the strategy meeting is not a complaint before us of direct race discrimination or harassment related to racediscrimination or harassment related to race although it can be relevant although it can be relevant evidence as to her thinkingevidence as to her thinking at the actual timeat the actual time. . Here we do ultimately Here we do ultimately find that find that the decision the decision waswas not not related torelated to (or because of)(or because of) the the claimant’s race but to claimant’s race but to the the content of the parental complaintcontent of the parental complaint, , Ms Devonish’s concern thatMs Devonish’s concern that the pupils may the pupils may not have the maturity to understand the implications of using the N wordnot have the maturity to understand the implications of using the N word,, and and the risk that could then pose to them and others.the risk that could then pose to them and others. We accept Ms Devonish’s We accept Ms Devonish’s evidence and find we have adequate evidence in that regard. evidence and find we have adequate evidence in that regard. 22 2266.. We also do not find on the evidence before us, or infer on the evidence We also do not find on the evidence before us, or infer on the evidence before us, that racially stereotyped bbefore us, that racially stereotyped beliefs concerning black people’s attitudes eliefs concerning black people’s attitudes towards the police were operating, whether consciously or subconsciously in towards the police were operating, whether consciously or subconsciously in the minds of Mthe minds of Ms Devonish. Ms Devonish was focused on the potential impact s Devonish. Ms Devonish was focused on the potential impact on on young pupil if they may not trust the police when young pupil if they may not trust the police when faced with faced with a situation they a situation they may need to.may need to. We accept We accept Ms DevonishMs Devonish would have held would have held such such concerns concerns irrespective of the race of the teacher concerned. irrespective of the race of the teacher concerned. 2 22277.. If we are incorrect as to the “related to” question we would in any event If we are incorrect as to the “related to” question we would in any event finfind that the conduct did not hd that the conduct did not have the proscribed purpose or effect. ave the proscribed purpose or effect. We do not We do not find that find that Ms DevonishMs Devonish was seeking to cause harmwas seeking to cause harm she was simply fulfilling her she was simply fulfilling her role as DOSrole as DOS. Ms Devonish was not acting in . Ms Devonish was not acting in consort with or at the direction of consort with or at the direction of 3R or indeed Mr Redrup. We find Ms Devonish was independently exercising 3R or indeed Mr Redrup. We find Ms Devonish was independently exercising her her delegated duties as DOS. delegated duties as DOS. 2 22288.. TThe claimant would perceive he claimant would perceive Ms Devonish’sMs Devonish’s actionaction in deciding the in deciding the threshold was met threshold was met in in referreferringring to a part 5to a part 5 meeting as having the proscribed meeting as having the proscribed effecteffect.. ButBut MMs Devonish s Devonish was applying and following the statutory was applying and following the statutory safeguarding process. As distressing as that understandably is to the safeguarding process. As distressing as that understandably is to the claimant, it is not claimant, it is not reasonable to regard the application of that processreasonable to regard the application of that process, when , when having been undertaken on a legitimate basis,having been undertaken on a legitimate basis, as having a harassing effect. as having a harassing effect. 22 2299.. AgainAgain,, we alsowe also address some additional key points made by the address some additional key points made by the claimant about Ms Devonish. claimant about Ms Devonish. First, it is said that MFirst, it is said that Ms Devonish could not s Devonish could not answer which answer which bullet point she proceeded under in the Section 5 procedures bullet point she proceeded under in the Section 5 procedures found at [729found at [729--730]730] under the sentenceunder the sentence:: ““It can be difficult to determine what It can be difficult to determine what may fall into the category of “unsuitable to work with children or adults at may fall into the category of “unsuitable to work with children or adults at riskrisk”. ”. The employer should consider whether the subject of the allegation or The employer should consider whether the subject of the allegation or concern has:…”concern has:…” Ms Devonish said that she was proceeding Ms Devonish said that she was proceeding under the earlier under the earlier section which sayssection which says:: “[The procedures] should be used in all cases in which it is alleged that “[The procedures] should be used in all cases in which it is alleged that a a person who works with children or adults at risk hasperson who works with children or adults at risk has::• Behaved in a way that has harmed or may have harmed a child or Behaved in a way that has harmed or may have harmed a child or adult at risk;adult at risk;• May have committed a criminal offence against a child or adult at risk May have committed a criminal offence against a child or adult at risk or that has a direct impact on the child or adult ator that has a direct impact on the child or adult at risk;risk;• Behaved towards a child, children or adults at risk in a way that Behaved towards a child, children or adults at risk in a way that indicates they are unsuitable to work with both children and adults.”indicates they are unsuitable to work with both children and adults.” We see nothing wrong with Ms Devonish’s account or analysis (that was also We see nothing wrong with Ms Devonish’s account or analysis (that was also supported by Ms James as LADO)supported by Ms James as LADO) that the second set of bullet points are not that the second set of bullet points are not Case No: 1601026/2022 57 mandatory but are there mandatory but are there as a tool to assist in an analysis if required.as a tool to assist in an analysis if required. It does It does not infer anything improper on the part of Ms Devonish. not infer anything improper on the part of Ms Devonish. 2 23030.. Second it is said that Ms DevonishSecond it is said that Ms Devonish is not a teaching professional andis not a teaching professional and should have respected that the claimant is a teaching professionalshould have respected that the claimant is a teaching professional, and , and should have appreciated that the claimant was capable of differentiating her should have appreciated that the claimant was capable of differentiating her teaching to deliver the tutorial safeteaching to deliver the tutorial safely. It is said that the ly. It is said that the supposed concern that supposed concern that a black member of staff is encouraging predominantly white pupils to use or a black member of staff is encouraging predominantly white pupils to use or appropriate the N word was bemusing to the point of insult.appropriate the N word was bemusing to the point of insult. That was, That was, however, not what was before Ms Devonishhowever, not what was before Ms Devonish;; when deciding to engage the when deciding to engage the part 5 procedures part 5 procedures Ms DevonishMs Devonish was responding to the parental concern andwas responding to the parental concern and,, as we have foundas we have found,, Ms DevonishMs Devonish identified the points of concern that she hidentified the points of concern that she held eld andand for the reasoning as identified. It was for the reasoning as identified. It was Ms Devonish’sMs Devonish’s job as job as DOSDOS and and with the qualifications that Ms Devonish had to do that jobwith the qualifications that Ms Devonish had to do that job to undertake thto undertake thee evaluationevaluation she didshe did. . 2 23131.. It is said that Ms Devonish gave no real evidence as to why she It is said that Ms Devonish gave no real evidence as to why she changed her mind changed her mind from unsubstantiated to substantiated apart from the views from unsubstantiated to substantiated apart from the views of otheof others present. rs present. It is alleged that 3R taskIt is alleged that 3R tasked Mr Redrup to pursue the ed Mr Redrup to pursue the complaint through safeguarding and that complaint through safeguarding and that Mr Redrup in turn influenced Ms Mr Redrup in turn influenced Ms Devonish to take the complaint to a statutory meeting despite her belief it was Devonish to take the complaint to a statutory meeting despite her belief it was unsubstantiated. unsubstantiated. The allegation we are dealing with however is the decision to The allegation we are dealing with however is the decision to engage the part 5 procedures. engage the part 5 procedures. At the point of referral to a part 5 meeting Ms At the point of referral to a part 5 meeting Ms Devonish did not believe the complaint was unsubstantiatedDevonish did not believe the complaint was unsubstantiated. She gave clear . She gave clear evidence what her concerns were about theevidence what her concerns were about the parental complaint when she saw parental complaint when she saw it and why she decided to engage the procedure. it and why she decided to engage the procedure. She She did later in advance of did later in advance of the strategy meeting (that she had already decided to hold) the strategy meeting (that she had already decided to hold) state state that the that the current information was third party and it would be difficult tocurrent information was third party and it would be difficult to give agive an outcome n outcome atat the meeting based on this alone. the meeting based on this alone. Ms DevonishMs Devonish then suggested the then suggested the preliminary enquiries take place with the pupils; but it was not a view preliminary enquiries take place with the pupils; but it was not a view that that tthe he allegations wereallegations were unsubstantiatedunsubstantiated but with a view to the difficulties of but with a view to the difficulties of assessing itassessing it. We . We consider that was Ms Devonish doing her job and consider that was Ms Devonish doing her job and was not was not indicative of her having been influenced by anyone to take the referral indicative of her having been influenced by anyone to take the referral in the in the first place. We have found that she was notfirst place. We have found that she was not so influencedso influenced,, and tand that Ms hat Ms Devonish as a qualified professional holding the role of DOS Devonish as a qualified professional holding the role of DOS was was exercisexercisinging her own judgementher own judgement and is demonstrated by her leading the process in the and is demonstrated by her leading the process in the emails we have.emails we have. 23 2322.. Ms Devonish likewise gave her explanation that at the strategy Ms Devonish likewise gave her explanation that at the strategy meeting meeting itself she initially felt it was difficult to come to an outcome when the itself she initially felt it was difficult to come to an outcome when the claimant had not given her point of viewclaimant had not given her point of view,, but that but that she had reflected onshe had reflected on the the evidence aevidence and listened tond listened to the views of others expressed as to the views of others expressed as to the consistency the consistency in the accounts in the accounts gaingaineded from the preliminary enquiries with pupils. from the preliminary enquiries with pupils. We find it We find it was ultimately was ultimately Ms Devonish’sMs Devonish’s own decision. We do not fiown decision. We do not find nd Ms Devonish Ms Devonish was was inappropriately influenced by Mr Redrup or 3R. They expressed their views,inappropriately influenced by Mr Redrup or 3R. They expressed their views, ((which is the purpose of having a multi agency forumwhich is the purpose of having a multi agency forum)) on the limited on the limited information availableinformation available thatthat aa degree of consistency that appeared to be there. degree of consistency that appeared to be there. We would note in that regardWe would note in that regard, which points against Ms Devonish being , which points against Ms Devonish being influenced by the alleged influenced by the alleged combined actioncombined actions of 3R and Mr Redrup,s of 3R and Mr Redrup, that was that was also an opinion expressed by DI Allsopp at the strategy meetingalso an opinion expressed by DI Allsopp at the strategy meeting,, and Ms and Ms Devonish’s decision making processes is recorded in the strategy meetingsDevonish’s decision making processes is recorded in the strategy meetings. . We do not find that it evidences that Ms Devonish was We do not find that it evidences that Ms Devonish was inappropriately led inappropriately led Case No: 1601026/2022 58 thr throughout the process by 3R and/or Mr Redrupoughout the process by 3R and/or Mr Redrup to engage Part 5 in the first to engage Part 5 in the first instance.instance. 23 2333.. It is also said that It is also said that Ms Ms Devonish did not explain why she did not delay in Devonish did not explain why she did not delay in making a decisionmaking a decision until more information was available. Againuntil more information was available. Again,, we would we would observe the allegationobserve the allegation before usbefore us is about the decision to engage Part 5 and is about the decision to engage Part 5 and not the decision to substantiate at the Part 5 meeting. However, not the decision to substantiate at the Part 5 meeting. However, the minutes the minutes show that show that there was initially a plan to reconventhere was initially a plan to reconvene if new information came to e if new information came to light, and that the Part 5 process needed to complete to allow the school to light, and that the Part 5 process needed to complete to allow the school to undertake their own investigation. undertake their own investigation. AgainAgain,, we do not find that it is evidence to we do not find that it is evidence to show that Ms Devonish was leshow that Ms Devonish was led by 3R and/or Mr Redrup, because of race, to d by 3R and/or Mr Redrup, because of race, to engage the process. engage the process. We accept her evidence, which we found cogent, as to We accept her evidence, which we found cogent, as to why why based on the parental complaint she made the decision that she didbased on the parental complaint she made the decision that she did. . 23 2344.. The claimant further alleges that Ms Devonish did not disaggregate the The claimant further alleges that Ms Devonish did not disaggregate the allegations or explain why if one allegation was substantiated then they all allegations or explain why if one allegation was substantiated then they all would be substantiated.would be substantiated. AgainAgain,, the allegation before us is Ms Devonish’s the allegation before us is Ms Devonish’s decision to engage Part 5 and it is not the decision to substantiatedecision to engage Part 5 and it is not the decision to substantiate the the allegations from a safeguarding perspective. Ms Devonish allegations from a safeguarding perspective. Ms Devonish explained that she explained that she believed the concern as a whole met the threshold for a section believed the concern as a whole met the threshold for a section 5 strategy5 strategy based on thbased on the aspects that she identified that caused her concern. She e aspects that she identified that caused her concern. She explained her rationale for each aspect of her concern. explained her rationale for each aspect of her concern. Her explanation in that Her explanation in that regard made sense to us regard made sense to us and we are satisfied was legitimateand we are satisfied was legitimate and genuinely and genuinely heldheld. . 23 2355.. FinallyFinally,, it is said that Ms Devonish was influenced to take steps so that it is said that Ms Devonish was influenced to take steps so that the claimant’s voice was not heard. We deal with that the claimant’s voice was not heard. We deal with that particular theme particular theme separately belowseparately below,, but we do not find that Ms Devonish was so influenced. but we do not find that Ms Devonish was so influenced. 23 2366.. These complaints of direct raceThese complaints of direct race discrimination and harassment related discrimination and harassment related to race relating to to race relating to the referral of the claimant to a Part 5 strategy meeting are the referral of the claimant to a Part 5 strategy meeting are not well founded and are dismissed. not well founded and are dismissed. Fa Faililureure to provide an opportunity for the to provide an opportunity for the cclaimant to address allegations laimant to address allegations informally informally and failure to provide an opportunity to provide her response and failure to provide an opportunity to provide her response formally to the allegation before the Safeguarding meeting was concludedformally to the allegation before the Safeguarding meeting was concluded.. 23 2377.. We deal with these two complaints together because there is the We deal with these two complaints together because there is the potential for overlap. potential for overlap. 23 2388.. The remaining complaintsThe remaining complaints in the List of Issuesin the List of Issues are pursued as are pursued as complaints of harassment related to race and not complaints of direct race complaints of harassment related to race and not complaints of direct race discriminationdiscrimination.. Parental complaint procedure Parental complaint procedure / early enquiries with the claimant/ early enquiries with the claimant 23 2399.. The claimant The claimant assertsasserts that that 3R3R should have should have given hergiven her the opportunity to the opportunity to address the allegations informally via the parental complaint procedure. address the allegations informally via the parental complaint procedure. She She also also saysays s that under the Welsh Government Guidance initial enquiries could that under the Welsh Government Guidance initial enquiries could be made such that the claimantbe made such that the claimant could have been given the date of the tutorial could have been given the date of the tutorial and maand matters discussed and she could have been invited to give her response tters discussed and she could have been invited to give her response before considering the engagement of safeguarding. It isbefore considering the engagement of safeguarding. It is allegedalleged this shows this shows Case No: 1601026/2022 59 the motive of 3R to contact Ms Ballantine and the motive of 3R to contact Ms Ballantine and Mr Redrup and to then press on Mr Redrup and to then press on through safeguarding and to discipthrough safeguarding and to disciplinary proceedings. linary proceedings. 224040.. We accept that being referred to safeguarding We accept that being referred to safeguarding ((with the limits on what with the limits on what the claimant could be toldthe claimant could be told)),, as opposed toas opposed to addressing the complaint through addressing the complaint through the parental complaint procedurethe parental complaint procedure ((where the claimant would have details of where the claimant would have details of the the complaintcomplaint)),, or otherwise asking the claimant for an initial response or otherwise asking the claimant for an initial response would would be unwanted conduct from the claimant’s perspective. be unwanted conduct from the claimant’s perspective. We would not find that We would not find that the claimant has established a prima facie case that such an action was the claimant has established a prima facie case that such an action was related to race. related to race. 2 24141.. The compThe comparator cases were all referred to safeguarding. arator cases were all referred to safeguarding. The claimant The claimant says that a white comparator would have been given the opportunity to says that a white comparator would have been given the opportunity to discuss the parental complaint and that two comparators were given that discuss the parental complaint and that two comparators were given that opportunityopportunity. . WWe do not accept e do not accept that is correctthat is correct. In . In all cases the same limitationsall cases the same limitations in what the teachers could be toldin what the teachers could be told were in placwere in place when safeguarding was e when safeguarding was engaged. engaged. Indeed, comparator 3 did not know the details of Indeed, comparator 3 did not know the details of the complaint the complaint against him whilst a 3 week police investigation was carried out. against him whilst a 3 week police investigation was carried out. 242. 242. It is It is also said that a white comparator, if in receipt of the same also said that a white comparator, if in receipt of the same complaicomplaint/in the same material circumstancesnt/in the same material circumstances,, would have had the complaint would have had the complaint treated as a conduct matter not a safeguarding matter. treated as a conduct matter not a safeguarding matter. But there is no actual But there is no actual comparatorcomparator inin support of this support of this propositionproposition that may indicate the treatment was that may indicate the treatment was related to racerelated to race. It is asserted the respondents would be more reticent to make . It is asserted the respondents would be more reticent to make an allegation of racism to a white member of staff in the same material an allegation of racism to a white member of staff in the same material circumstancescircumstances. But that assertion is not supported by evi. But that assertion is not supported by evidence. Furthermoredence. Furthermore,, 3R d3R did not make an allegation of racism against the claimant. id not make an allegation of racism against the claimant. 2 24433.. IIn any event we n any event we find the respondent has establishedfind the respondent has established,, through through cogentcogent evidenceevidence,, that the decision not to use a parental complaint procedurethat the decision not to use a parental complaint procedure (or(or notnot treat treat it as it as a a conduct matter without a safeguarding elementconduct matter without a safeguarding element,, oror not makenot make early early enquiries with the claimantenquiries with the claimant)) and toand to insteadinstead make a referral to safeguarding make a referral to safeguarding was not related to race. was not related to race. 24 2444.. As set out aboveAs set out above,, 3R took the action he did because he was concerned 3R took the action he did because he was concerned about the content of about the content of the parental complaintthe parental complaint ((which had asked for which had asked for confidentialityconfidentiality and and which which suggested it may be a safeguarding mattersuggested it may be a safeguarding matter)). 3R . 3R took took advice from Ms Ballantine and followed that advice to contact advice from Ms Ballantine and followed that advice to contact Mr RedrupMr Redrup. 3R. 3R alsoalso understood understood that was the process thethat was the process the policy and procedures said to policy and procedures said to followfollow. . 3R3R was constrainedwas constrained,, whilst the matter was with safeguardingwhilst the matter was with safeguarding to to evaluateevaluate,, as to what he could tell the claimantas to what he could tell the claimant and that was what 3R and that was what 3R understoodunderstood. Such a . Such a situation situation preventedprevented 3R3R dealing with it as a parental dealing with it as a parental complaintcomplaint, or simple conduct matter,, or simple conduct matter, or making enquiries with the claimantor making enquiries with the claimant because the safeguarding evaluation would need to come firstbecause the safeguarding evaluation would need to come first.. The same The same happened in the comparator cases. happened in the comparator cases. 245.245. As already stated, tAs already stated, the initial enquiries in the Welsh Government he initial enquiries in the Welsh Government GuidanceGuidance [310][310] are about understanding the allegation maare about understanding the allegation made, where and went de, where and went it allegedly happened and who was present. They are not about it allegedly happened and who was present. They are not about taking taking information from the subject of the concerninformation from the subject of the concern. This essential. This essential backgroundbackground information was already available from the parental complaint itself. 3Rs information was already available from the parental complaint itself. 3Rs actions are the actions heactions are the actions he would have taken in the same situation with a would have taken in the same situation with a Case No: 1601026/2022 60 teacher of a different race. teacher of a different race. HHe was not motivated consciously or e was not motivated consciously or subconsciously by the claimant’s race.subconsciously by the claimant’s race. It was not related to race. It was not related to race. 2 24466.. For the reasons already given above, we would also find that 3R’s For the reasons already given above, we would also find that 3R’s actions did not have the purpose of creating the proscribed effectactions did not have the purpose of creating the proscribed effect. . We We accept accept tthe claimant would consider it to be a harassing effecthe claimant would consider it to be a harassing effect. S. Subjectively her ubjectively her distress at being the subject of a complaint distress at being the subject of a complaint ((that she did not have the detail that she did not have the detail of of and could not discuss with the parent to resolveand could not discuss with the parent to resolve),), is understandable. Bis understandable. But in ut in the circumstancethe circumstances as found it would nots as found it would not, in our judgement, be reasonable to , in our judgement, be reasonable to consider it to have such an effect,consider it to have such an effect, becausebecause 3R was following the processes 3R was following the processes and guidance in place. and guidance in place. Other Other early early oopportunitpportunitiesies to respond to allegationsto respond to allegations?? 2 24477.. 3R 3R sought to meet with thesought to meet with the cclaimant by asking her to see him on the laimant by asking her to see him on the day the complaint was receivedday the complaint was received,, and the claimant declined unless she was and the claimant declined unless she was appraised of the detail before meeting. appraised of the detail before meeting. 3R had been seeking advice in the 3R had been seeking advice in the meantimemeantime.. BBy the time they were due to meety the time they were due to meet 3R3R had spoken to Ms had spoken to Ms Ballantine. The meeting with the claimant did not happen that dayBallantine. The meeting with the claimant did not happen that day,, but but in our in our judgementjudgement,, it is unlikely that 3R would have said more than the fact an it is unlikely that 3R would have said more than the fact an allegation had been received and it was being looked at by safeguarding.allegation had been received and it was being looked at by safeguarding. 24 2488.. ByBy 12 October 12 October the safeguarding procedures had been engaged. the safeguarding procedures had been engaged. The The claimant was invited to meet with 3R via Mr Kennedy. claimant was invited to meet with 3R via Mr Kennedy. The claimantThe claimant again again declined to do so in the absence of being provided with detail.declined to do so in the absence of being provided with detail. In our In our judgement she declined two reasonable management rejudgement she declined two reasonable management requests to meet.quests to meet. On On both occasions there was an opportunity for the claimant to meet and the both occasions there was an opportunity for the claimant to meet and the potential to discuss the complaint informally; albeit we fully accept her ability potential to discuss the complaint informally; albeit we fully accept her ability to respond was constrained by the lack of information she had to respond was constrained by the lack of information she had (or (or wouldwould)) be be given given at that point in time. at that point in time. 24 2499.. 3R then actively required the claimant to meet with him3R then actively required the claimant to meet with him. . Following Following advice from Mr Redrup hadvice from Mr Redrup he told her that an allegation had been made, was e told her that an allegation had been made, was being looked at by safeguardingbeing looked at by safeguarding,, aand he could not tell her what the allegation nd he could not tell her what the allegation was at that time. was at that time. AgainAgain,, there was an opportunity for the claimant to respond there was an opportunity for the claimant to respond with whatever she wished butwith whatever she wished but we we again again acceptaccept her ability to respond was her ability to respond was constrained by the lack of information. constrained by the lack of information. 2 25050.. TThis his limited information waslimited information was unwanted conduct from the claimant’s unwanted conduct from the claimant’s perspective. But we do not find she has established a prima facie case that it perspective. But we do not find she has established a prima facie case that it was related to race. Our analysis is similar to the above in relation to the was related to race. Our analysis is similar to the above in relation to the complaintcomplaintss about the referral to safeguabout the referral to safeguardingarding//not treating not treating it under the parental it under the parental complaints procedure, complaints procedure, because because these complaints are all intertwined. The these complaints are all intertwined. The comparators were not told the details of the allegationscomparators were not told the details of the allegations just as the claimant just as the claimant was not told. was not told. Comparator 2 was told what the claimant Comparator 2 was told what the claimant was or was or would have would have been toldbeen told. . ButBut the difference is thatthe difference is that comparator 2comparator 2 was able themselves to was able themselves to make an educated guess what the complaint was about and give an account. make an educated guess what the complaint was about and give an account. That thisThat this accountaccount could be fed back to safeguarding was a product of could be fed back to safeguarding was a product of aa material difference betweenmaterial difference between comparator 2 and the claimantcomparator 2 and the claimant,, itit was not borne was not borne of differential treatment by 3R. of differential treatment by 3R. 2 25511. . In any eventIn any event,, we would find the respondents have provided adequate we would find the respondents have provided adequate evidence to show that evidence to show that 3R’s actions were not related to race. 3R’s actions were not related to race. 3R 3R did not did not Case No: 1601026/2022 61 provide the claimant with information because provide the claimant with information because 3R3R genuinely believed he could genuinely believed he could not do so whilst not do so whilst the complaint was with safeguarding. the complaint was with safeguarding. That was followed by That was followed by Mr Redrup giving advice about the limits on what couldMr Redrup giving advice about the limits on what could be saidbe said and 3R acted and 3R acted on that adviceon that advice. . 3R’s actions3R’s actions also accorded with also accorded with 3R’s3R’s understanding of the understanding of the policies, procedures and guidance. It was in Mr Adkins’ words, 3R’s “modus policies, procedures and guidance. It was in Mr Adkins’ words, 3R’s “modus operandi” and operandi” and is what 3R would have done in respect of any teacher in that is what 3R would have done in respect of any teacher in that position. It was not related to race.position. It was not related to race. 2 25522.. The claimant says that there is The claimant says that there is no blanket policy against disclosure of no blanket policy against disclosure of information and a case by case assessment should have been untaken. She information and a case by case assessment should have been untaken. She says there can have been no reasonable belief that she would interfere with says there can have been no reasonable belief that she would interfere with an investigation an investigation as she wanted to engage. The claimant says that itas she wanted to engage. The claimant says that it was 3R was 3R and Mr Redrup that did not want the process to happand Mr Redrup that did not want the process to happen. en. 25 2533.. As explained by Mr Redrup in his evidence, we can understand the As explained by Mr Redrup in his evidence, we can understand the importance of have a general standpoint of not providing information about importance of have a general standpoint of not providing information about allegations whilst safeguarding are going thrallegations whilst safeguarding are going through a process of an initial ough a process of an initial evaluation and having a strategy discussion with the police. A potential police evaluation and having a strategy discussion with the police. A potential police investigation would need to take primacy; the integrity of any such potential investigation would need to take primacy; the integrity of any such potential investigation would need to be protected and the potential for key wiinvestigation would need to be protected and the potential for key witnesses tnesses or other individuals to be contacted or influenced safeguarded againstor other individuals to be contacted or influenced safeguarded against.. It was It was that that general general standpointstandpoint that Mr Redrup and 3R that Mr Redrup and 3R werewere following and we are following and we are satisfied that they had and would do in other similar circumstances. satisfied that they had and would do in other similar circumstances. AgainAgain,, as as Mr Redrup explained, as a safeguarding process it was there to put the voice Mr Redrup explained, as a safeguarding process it was there to put the voice of the child atof the child at itsits centrecentre. . 25 2544.. We accept it was not open to We accept it was not open to Mr Redrup or 3R Mr Redrup or 3R to to prejudge at that point prejudge at that point in timein time and decide thatand decide that the claimant the claimant or someone in her position could never or someone in her position could never seek to contact a childseek to contact a child, , parent or witnessparent or witness,, or do something that could risk or do something that could risk prejudicing potential police enquiriesprejudicing potential police enquiries.. It flies in the face oIt flies in the face of having af having a multidisciplinary evaluation processmultidisciplinary evaluation process with appropriate statutory authoritieswith appropriate statutory authorities. . Once discussed with the police, it then allows more nuanced decisions as to Once discussed with the police, it then allows more nuanced decisions as to what can be disclosed by whom and when in a particular case. what can be disclosed by whom and when in a particular case. As set out in As set out in our findings of our findings of fact and in our analysis below, our finding is that this is what fact and in our analysis below, our finding is that this is what Ms Devonish subsequently intended to happen but misunderstanding and Ms Devonish subsequently intended to happen but misunderstanding and miscommunication arose.miscommunication arose. 2 25555.. For the reasons set out in the analysis given above, we also do not find For the reasons set out in the analysis given above, we also do not find that 3R acted with the purpose of that 3R acted with the purpose of creating a harassing effect for the claimant creating a harassing effect for the claimant in limiting what he did or was able to tell her at this time. in limiting what he did or was able to tell her at this time. Subjectively the Subjectively the claimant found it distresclaimant found it distressingsing,, but again for reasons already givenbut again for reasons already given,, we would we would not find that it was reasonable in the circumstances to find not find that it was reasonable in the circumstances to find 3Rs actions had 3Rs actions had the proscribed effect when he was following the policies, procedures and the proscribed effect when he was following the policies, procedures and guidance in place.guidance in place. Opportunity for Opportunity for preliminary enquiries with the claimantpreliminary enquiries with the claimant before the strategy before the strategy meetingmeeting? ? 2 25566.. On our findingsOn our findings on 14 October Ms Devonish authorised the claimant to on 14 October Ms Devonish authorised the claimant to be told the specific lesson(s) that the allegation related to butbe told the specific lesson(s) that the allegation related to but there was a there was a misunderstandingmisunderstanding. . 3R understood it to mean that he could only say that the 3R understood it to mean that he could only say that the complaint was about the content of a lesson complaint was about the content of a lesson where a parent had subsequently where a parent had subsequently raised a concern, raised a concern, without identifying which particular lesson. without identifying which particular lesson. 3R therefor3R thereforee Case No: 1601026/2022 62 emailed M emailed Mrs Setchfield in the limited terms iders Setchfield in the limited terms identified. ntified. As such there was no As such there was no further meeting prior to the strategy meeting as there was, on 3R’s mistaken further meeting prior to the strategy meeting as there was, on 3R’s mistaken understandingunderstanding,, no further information to impartno further information to impart or that the claimant felt able to or that the claimant felt able to respond to. respond to. 2 25577.. We We could not identify any examples of could not identify any examples of situations with other situations with other comparators where 3R went back and told them morecomparators where 3R went back and told them more. Because of this and. Because of this and because ofbecause of ourour analysis undertaken analysis undertaken aboveabove where we analyse and reject the where we analyse and reject the claimant’s claimant’s allegations that 3R held ill intent towards herallegations that 3R held ill intent towards her andand reject the reject the other other allegations relating to his actions and motivations allegations relating to his actions and motivations we would not find that the we would not find that the claimant has established a prima facie case that claimant has established a prima facie case that failure to provide her with the failure to provide her with the increased information authorised by Ms Devonish increased information authorised by Ms Devonish was related to race.was related to race. 2 25588.. But in any evenBut in any event wt we would find that the respondent has e would find that the respondent has established established through adequate evidence it was not related to race.through adequate evidence it was not related to race. We find that it was a We find that it was a genuine misunderstanding on the part of 3R. genuine misunderstanding on the part of 3R. It was a misunderstanding It was a misunderstanding based on the wording that 3R was sentbased on the wording that 3R was sent which could have been which could have been much clearermuch clearer and no one told 3R otherwiseand no one told 3R otherwise. . In our judgement In our judgement 3R did not reasonably 3R did not reasonably suppose any differensuppose any differencece because because his understanding from other cases and the his understanding from other cases and the policies and guidance was that whilst it was with safeguarding there were policies and guidance was that whilst it was with safeguarding there were resrestrictions in place about what a teacher could be told. In none of the trictions in place about what a teacher could be told. In none of the comparator cases had he been permitted to give more information. comparator cases had he been permitted to give more information. We find We find that 3R would have made such a misunderstanding in the same that 3R would have made such a misunderstanding in the same circumstances but when faced with a teacher of a difcircumstances but when faced with a teacher of a different race. ferent race. Opportunity for preliminary enquiries with the claimant after the strategy meeting Opportunity for preliminary enquiries with the claimant after the strategy meeting to allow it to reconveneto allow it to reconvene? ? 2 25599.. Following the strategy meeting 3R sent the email inviting the claimant Following the strategy meeting 3R sent the email inviting the claimant to engage in a preliminary meeting. to engage in a preliminary meeting. The preliminary meeting The preliminary meeting ultimately did not ultimately did not go ahead because 3Rgo ahead because 3R againagain said that the purpose was simply to state that an said that the purpose was simply to state that an allegation had been made and to give the claimant the opportunity to respond allegation had been made and to give the claimant the opportunity to respond to this. to this. TThe claimanthe claimant did therefore hadid therefore have ve the opportunity to meet to discuss the the opportunity to meet to discuss the allegationsallegations,, but the opportunity remained serioubut the opportunity remained seriously constrained by the sly constrained by the restrictions as to what she would be toldrestrictions as to what she would be told.. 2 26060.. We could not identify any examples of situations with other We could not identify any examples of situations with other comparators wherecomparators where there was to be an opportunity for 3R to there was to be an opportunity for 3R to arrange a arrange a preliminary meeting preliminary meeting with the understanding the part 5 with the understanding the part 5 meetingmeeting would then be would then be reconvenedreconvened.. The potential for a preliminary meeting and then reconvening the The potential for a preliminary meeting and then reconvening the part 5 meetingpart 5 meeting was also a was also a stepstep we findwe find that had been that had been driven by 3Rdriven by 3R. Because . Because of thisof this,, and because of our analysis undertaken above where we analyse and and because of our analysis undertaken above where we analyse and reject the claimant’s allegationsreject the claimant’s allegations about 3R’s wider intent and actions towards about 3R’s wider intent and actions towards herher; we would not find that the claimant has established a prima facie case ; we would not find that the claimant has established a prima facie case that that the limitations placed on whatthe limitations placed on what she could be told in the preliminary she could be told in the preliminary meeting meeting related to race.related to race. 2 26161.. But in any eventBut in any event,, we would find that the respondentwe would find that the respondentss hhaveave established established through adequatethrough adequate cogentcogent evidence it was not related to race. evidence it was not related to race. In In particular, weparticular, we accept 3Rs evidence that he genuinelyaccept 3Rs evidence that he genuinely believed believed he was limited he was limited in what he in what he could tell the claimant. We could tell the claimant. We find that it was afind that it was a continuation of acontinuation of a genuine genuine misunderstanding on the part of 3R.misunderstanding on the part of 3R. 3R had been restricted at the start as to 3R had been restricted at the start as to what he could say, what he could say, he then understood (mistakenly) that he could only tell the he then understood (mistakenly) that he could only tell the Case No: 1601026/2022 63 claimant the allegation was about the content of a lesson, and claimant the allegation was about the content of a lesson, and that that misunderstanding continued once the preliminary meeting was authormisunderstanding continued once the preliminary meeting was authorised. ised. 3R 3R did not reasonably suppose any different because his understanding from did not reasonably suppose any different because his understanding from other cases and the policies and guidance was that whilst it was with other cases and the policies and guidance was that whilst it was with safeguarding there were restrictions in place about what a teacher could be safeguarding there were restrictions in place about what a teacher could be told.told. We We findfind that in 3R’s mithat in 3R’s mindnd, bearing in mind, bearing in mind the potential to reconvene the the potential to reconvene the strategy meetingstrategy meeting,, the case remained in safeguarding and with safeguarding the case remained in safeguarding and with safeguarding restrictions in place.restrictions in place. In none of the comparator cases hadIn none of the comparator cases had 3R 3R been permitted been permitted to give more informationto give more information or take this or take this particular stepparticular step. . As set out in 3R’s emAs set out in 3R’s emailailss of 20 October 2021of 20 October 2021,, 3 November 20213 November 2021 and 4 November 2021and 4 November 2021,, he he saw saw the the processprocess asas separate to separate to an investigation meeting an investigation meeting where where more information more information could could be givenbe given (and where the respondents were going to have to give careful (and where the respondents were going to have to give careful considerationconsideration as part of that investigationas part of that investigation as to as to what and how the claimant what and how the claimant would be told because confidentiality concerns had arisen)would be told because confidentiality concerns had arisen). . But in relation to But in relation to the safeguarding the safeguarding preliminary meeting,preliminary meeting, 3R3R thought he was following the advice thought he was following the advice and policy and policy of the safeguarding team. of the safeguarding team. We find that 3R would have made such We find that 3R would have made such a misunderstanding in the same circumstances but when faced with a teacher a misunderstanding in the same circumstances but when faced with a teacher of a different race. of a different race. It was a mistake not related to race.It was a mistake not related to race. We do not find that We do not find that 3R deliberately offered the meeting3R deliberately offered the meeting,, and then and then deliberately deliberately said said more detail more detail could not be givencould not be given,, as a means to deliberately goad the claimantas a means to deliberately goad the claimant. We do not . We do not find thatfind that the offer of the preliminary meeting the offer of the preliminary meeting was never meant as a meaningful was never meant as a meaningful offoffer. er. 2 26262.. As we find As we find the limiting of the information given to the claimant was a the limiting of the information given to the claimant was a genuine misunderstanding we do not find that 3R had the purpose of creating genuine misunderstanding we do not find that 3R had the purpose of creating the proscribed effect for the claimant. We accept that the proscribed effect for the claimant. We accept that the claimant found the the claimant found the situation to situation to be intimidating and humiliating. be intimidating and humiliating. Knowing what is known now it is Knowing what is known now it is also reasonable to view the conduct as having that effectalso reasonable to view the conduct as having that effect. This was not the . This was not the simple application of the procedure to the claimant; a mistake had been made simple application of the procedure to the claimant; a mistake had been made that objectively speakthat objectively speaking should not hing should not have happened.ave happened. But as already stated, But as already stated, we do not find it was conduct related to race. we do not find it was conduct related to race. Other missed Other missed opportunities to reconvene the strategy meeting opportunities to reconvene the strategy meeting ?? 2 26363.. OOn 16 November 2021 Ms Devonish withdrew the opportunity of n 16 November 2021 Ms Devonish withdrew the opportunity of reconvening the professional reconvening the professional strategy meeting at tstrategy meeting at thathat timetime. This was. This was on the on the advice of Ms James. The claimant did not know this because the claimant had advice of Ms James. The claimant did not know this because the claimant had already declined to attend already declined to attend the preliminary meeting the preliminary meeting because of the limits on because of the limits on what she could be told. what she could be told. In that sense it was not unwanted conductIn that sense it was not unwanted conduct becausebecause the claimant did not know about the claimant did not know about the withdrawal of the opportunity the withdrawal of the opportunity at the time. at the time. ButBut in any event,in any event, we are satisfied this withdrawal was not an action on the we are satisfied this withdrawal was not an action on the part of 3R. part of 3R. The decisionThe decision was led by Ms James because there had already was led by Ms James because there had already been an outcome to the professional strategy meeting and thereforebeen an outcome to the professional strategy meeting and therefore,, if further if further information was to be obtainedinformation was to be obtained,, it was via the disciplinary investigation. We do it was via the disciplinary investigation. We do find the claimant has estfind the claimant has established a prima face case that ablished a prima face case that such action on the such action on the part of Ms Devonish or Ms James was related to the claimant’s race.part of Ms Devonish or Ms James was related to the claimant’s race. But we But we would in any event find the respondents have established through adequate would in any event find the respondents have established through adequate evidence it was not so related. evidence it was not so related. Ms Devonish had genuinelMs Devonish had genuinely thought it was y thought it was possible possible until until Ms James clarifiedMs James clarified itit.. We are satisfied the same situation wouldWe are satisfied the same situation would have arisen if the claimant were of a different race.have arisen if the claimant were of a different race. 2 26464.. The potential opportunity arose again in February 2022 once the The potential opportunity arose again in February 2022 once the claimant had received the claimant had received the redacted version of the parental complaintredacted version of the parental complaint.. Mr Mr Case No: 1601026/2022 64 Adkins wrote to Ms James and Ms Forte seeking the reconvening of the Adkins wrote to Ms James and Ms Forte seeking the reconvening of the meeting with the claimant and the Part 5 meeting thereafter. Ms Forte was meeting with the claimant and the Part 5 meeting thereafter. Ms Forte was agreeable to the stepagreeable to the step,, but it could not take place because safeguabut it could not take place because safeguarding’s rding’s position wasposition was becausebecause the school’s investigation had started it needed to the school’s investigation had started it needed to complete. Againcomplete. Again,, we find that was a position led by Ms Devonish/Ms Jameswe find that was a position led by Ms Devonish/Ms James. . We do not find that the claimant has established a prima facie case that it was We do not find that the claimant has established a prima facie case that it was related to race. In any event we would find that the respondents have, through related to race. In any event we would find that the respondents have, through adequate evidence, established that it was not related to the claimant’s race.adequate evidence, established that it was not related to the claimant’s race. It It related to related to tthe Safeguarding Team’she Safeguarding Team’s process process in place in place that that 1R’s1R’s investigation investigation needed toneeded to firstfirst complete. complete. 2 26565.. We do not repeat here analysis already undertaken above as to We do not repeat here analysis already undertaken above as to allegations the claimant makes about the respondentsallegations the claimant makes about the respondents’’ motivations and wider motivations and wider actions actions but to be clear we do not find that 3Rbut to be clear we do not find that 3R (or anyone else)(or anyone else) was using the was using the process as a means to harass the claimant on grounds of her race, or thatprocess as a means to harass the claimant on grounds of her race, or that their their actions were rooted in a discriminatory assumption that the claimant actions were rooted in a discriminatory assumption that the claimant must hmust have undermined the police as a black woman owing to her raceave undermined the police as a black woman owing to her race. We do . We do not find that 3R agreed with Mr Redrup to withhold details of the allegationsnot find that 3R agreed with Mr Redrup to withhold details of the allegations. . Mr Redrup gave some initial advice. In the latter stages there was Mr Redrup gave some initial advice. In the latter stages there was misunderstanding on the part of 3R. misunderstanding on the part of 3R. 2 26666.. The The cclaimant says that Welsh Government laimant says that Welsh Government Guidance Guidance required there to required there to be a discussion between the headteacher be a discussion between the headteacher the LADO which did not take place. the LADO which did not take place. We have dealt with We have dealt with this pointthis point already above already above where we found the process that where we found the process that was followed was followed (in channelling it th(in channelling it through Mr Redrup) would have happened in rough Mr Redrup) would have happened in the same material circumstances with a teacher of another racethe same material circumstances with a teacher of another race. The claimant . The claimant says that the Guidance says the discussion may lead to a decision the says that the Guidance says the discussion may lead to a decision the allegation is demonstrably false or unfounded and no further actionallegation is demonstrably false or unfounded and no further action bbe taken e taken and agreement reached on what information should be put in writing to the and agreement reached on what information should be put in writing to the individual and by whom. individual and by whom. But hereBut here,, given the content of the parental complaintgiven the content of the parental complaint,, the complaint was not, and could not have been considered to the complaint was not, and could not have been considered to be, be, demonstrably false or demonstrably false or unfoundedunfounded. T. Therefore herefore it did not trigger the requirement it did not trigger the requirement to decide what information be put in writing to the claimant. to decide what information be put in writing to the claimant. 2 26677.. This complaint of harassment related to race is not well founded and is This complaint of harassment related to race is not well founded and is dismissed. dismissed. Pursue allegations of racism against the Claimant (Ms Forte’s letter of 2 Pursue allegations of racism against the Claimant (Ms Forte’s letter of 244 NovemberNovember 20212021)) 26 2688.. The letter The letter told the claimant that she was under a disciplinary told the claimant that she was under a disciplinary investigation and that the allegations if true potentially would amount to investigation and that the allegations if true potentially would amount to misconduct and/or gross misconduct. One allegation was misconduct and/or gross misconduct. One allegation was the claimantthe claimant had had ““cconveyed onveyed personal personal views to students when conducting a leviews to students when conducting a lesson in your sson in your capacity as a teacher which were racistcapacity as a teacher which were racist……” ” The letter alleged the claimant had The letter alleged the claimant had breached the Equality Act and behaved in a discriminatory manner, was in breached the Equality Act and behaved in a discriminatory manner, was in breach of safeguarding, failed to behave professionally, had brought the breach of safeguarding, failed to behave professionally, had brought the School and School and Governing Body into disreputeGoverning Body into disrepute,, and had breached the Education and had breached the Education Workforce’s Code of Conduct. Workforce’s Code of Conduct. To be placed under a disciplinary investigation To be placed under a disciplinary investigation and have and have thosthose allegations made was undoubtedly unwanted conduct. Any e allegations made was undoubtedly unwanted conduct. Any teacher in the claimant’s shoes would consider teacher in the claimant’s shoes would consider it as such. it as such. Case No: 1601026/2022 65 26 2699.. We have found that the wording used We have found that the wording used in the letter in the letter adoptedadopted the wordingthe wording previously used by Ms Devonishpreviously used by Ms Devonish,, albeitalbeit Ms Forte did not know that at the time Ms Forte did not know that at the time because the letter had because the letter had been drafted by the legal department. We have not been drafted by the legal department. We have not heard heard evidence from the original drafter of the letterevidence from the original drafter of the letter.. Ms Forte, however, Ms Forte, however, did did check the letter and said in evidence she check the letter and said in evidence she considered that the letter was an considered that the letter was an accurate reflection of the parental complaint. accurate reflection of the parental complaint. Ms ForteMs Forte said she was not said she was not saying the claimant was racist, but that the claimant had expressedsaying the claimant was racist, but that the claimant had expressed personalpersonal views that were racist views that were racist in the form lessonin the form lesson in questionin question. Ms Forte said . Ms Forte said she saw she saw that as an accurate portrayal of what the parental complaint email was saying. that as an accurate portrayal of what the parental complaint email was saying. Ms FoMs Forterte said the letter was drafted on the basis of the parental complaint said the letter was drafted on the basis of the parental complaint email and advice from the legal department. email and advice from the legal department. It was put to Ms Forte in cross It was put to Ms Forte in cross examination that the parental email did not describe the claimant’s comments examination that the parental email did not describe the claimant’s comments as being racist. Ms Forte said as being racist. Ms Forte said tthat the very fact the N word was in there made hat the very fact the N word was in there made the reading of the complaint as being an allegation that personal views that the reading of the complaint as being an allegation that personal views that were racist had been used. were racist had been used. 2 27070.. We find that here the claimant did establish a prima facie case that the We find that here the claimant did establish a prima facie case that the conduct was related to raceconduct was related to race for the reasoning we set out in our analysis below for the reasoning we set out in our analysis below that that relatrelateses to the specific wording that the respondents chose to adopt. We to the specific wording that the respondents chose to adopt. We do not find that the respondo not find that the respondents have established through cogent evidence it dents have established through cogent evidence it was not related to race. was not related to race. 271. 271. The respondentThe respondentss dedenyny that that this was conduct related to race. this was conduct related to race. They say They say that the parental complaint was referring tothat the parental complaint was referring to the alleged the alleged use ofuse of the N wordthe N word in in the context of a lesson andthe context of a lesson and concerns aboutconcerns about the impact on impressionable the impact on impressionable pupils. The respondents say that it was thipupils. The respondents say that it was this that the word racist referred to i.e. s that the word racist referred to i.e. useuse ofof the N word to students in a lessonthe N word to students in a lesson. They say . They say the concerns raised the concerns raised were were about an arguably racist term used in a lesson. about an arguably racist term used in a lesson. The respondents argue The respondents argue that that ththisis concern concern when recorded in Ms Fortes’ when recorded in Ms Fortes’ letter was letter was regardless of race.regardless of race. The The respondents observe that it was clear to the claimantrespondents observe that it was clear to the claimant (as shown by the email (as shown by the email of 3 December 2021),of 3 December 2021), oonce nce the claimantthe claimant received Ms Forte’s letterreceived Ms Forte’s letter and was and was aware of the context of the lessonaware of the context of the lesson,, why the concerns had been raised and why the concerns had been raised and that they related to discussions around racism. that they related to discussions around racism. They They respondents argue that respondents argue that how the letter was phrased was based on the parental concerns raised anhow the letter was phrased was based on the parental concerns raised andd was not was not unwanted conduct related to the claimant’s race. unwanted conduct related to the claimant’s race. They say it wThey say it was as conduct not related to conduct not related to the claimant’s the claimant’s race but related to the content of the race but related to the content of the lesson. lesson. 2 27272.. The parental complaint The parental complaint alleged that racism had been discussed in the alleged that racism had been discussed in the classclass,, and that the claimant had allegedly said it was ok for her to use the N and that the claimant had allegedly said it was ok for her to use the N word because of her race. The parent word because of her race. The parent clearly thought that it was an clearly thought that it was an inappropriate thing to have been said to the classinappropriate thing to have been said to the class hence they were raising it. hence they were raising it. The parent The parent expressed concerns about expressed concerns about the potential impactthe potential impact in communities in communities in in the arena ofthe arena of race relationsrace relations,, and and expressed a concern aboutexpressed a concern about one particular one particular friendfriend of Child A who it was said had a fragile mindset about minority groups. of Child A who it was said had a fragile mindset about minority groups. So fundamentally it was about alleged inappropriate use of the N word. So fundamentally it was about alleged inappropriate use of the N word. 2 27373.. But But Ms Forte’s letter did not say thatMs Forte’s letter did not say that. I. It did not give that contextt did not give that context. . InsteadInstead, , the letterthe letter allegedalleged the claimant hadthe claimant had conveyed personal viewsconveyed personal views to to students students thatthat were racist. were racist. As Mr Adkins pointed out to us, tAs Mr Adkins pointed out to us, the allegation he allegation specifically specifically referred to personal views. So it was sayingreferred to personal views. So it was saying,, by implicationby implication,, that that the claimant the claimant held personal views that were racist.held personal views that were racist. IIn n eveeveryday language ryday language referring to someone as being racistreferring to someone as being racist,, or holding racist viewsor holding racist views,, is generally is generally Case No: 1601026/2022 66 suggesting that they suggesting that they are prejudiced against are prejudiced against other other people people on the basis of on the basis of membership of a membership of a different, different, particular racial or ethnic groupparticular racial or ethnic group or groupsor groups.. In our In our judgement the allegation as written in the letter was judgement the allegation as written in the letter was inherently related to race. inherently related to race. At its heart, aAt its heart, as s written, it was saying (even if that was not was meant) written, it was saying (even if that was not was meant) that the that the claimantclaimant, with her own racial background, was prejudiced against , with her own racial background, was prejudiced against others others with with a diffea differentrent racialracial background. background. We do not consider the fact that it was intending We do not consider the fact that it was intending to to convey convey a different allegation about alleged inappropriate use of the N word a different allegation about alleged inappropriate use of the N word to a to a class of pupilsclass of pupils makes what was actually makes what was actually setset out in Ms Forte’s letter as out in Ms Forte’s letter as beingbeing unrelated to race. unrelated to race. Nor does the fact that by 3 December the claimant Nor does the fact that by 3 December the claimant had supposed that the complaint related to had supposed that the complaint related to the discussion of black people’s the discussion of black people’s experiences of racism experiences of racism as experienced by Black Lives Matter and other as experienced by Black Lives Matter and other organisorganisations. ations. 2 27474.. For that reason we find that the expression of that allegation in the For that reason we find that the expression of that allegation in the letter was related to race. We do notletter was related to race. We do not, however,, however, accept accept that that thethe separateseparate allegation ofallegation of allegedlyallegedly undermining confidence in the policeundermining confidence in the police was related to was related to racerace. We . We do not accept that allegation was do not accept that allegation was rooted in a discriminatory rooted in a discriminatory assumption that the claimant must have undermined the police as a black assumption that the claimant must have undermined the police as a black woman because of racist stereotypes about black people’s attitudes towards woman because of racist stereotypes about black people’s attitudes towards the policethe police,, or that as a black woman she was not allowed to discuss the or that as a black woman she was not allowed to discuss the Sarah Everard case. Sarah Everard case. That allegation, we accept, was rooted in concerns That allegation, we accept, was rooted in concerns about the alleged comments about the police in the parental complaint and about the alleged comments about the police in the parental complaint and their potential impact on pupils.their potential impact on pupils. 275. 275. As pointeAs pointed out by the respondents, wd out by the respondents, we also accept that the letter itself e also accept that the letter itself was cumulative and related to various alleged was cumulative and related to various alleged comments comments by the claimant, by the claimant, of of whichwhich allegation the claimant had conveyed personal views that was racist allegation the claimant had conveyed personal views that was racist was just one partwas just one part. But it . But it played a part that was more than trivialplayed a part that was more than trivial. It was a . It was a significant partsignificant part and in our judgement the drafting and sending of that letter and in our judgement the drafting and sending of that letter was related to race. was related to race. 2 27676.. We do not find that the aWe do not find that the allegation was written with the purpose of llegation was written with the purpose of creating a harassing environment for the claimant. creating a harassing environment for the claimant. As Ms Forte subsequently As Ms Forte subsequently explained, iexplained, it was written in the context of trying to convey the allegations t was written in the context of trying to convey the allegations whilst preserving confidentiality whilst preserving confidentiality aandnd,, in all likelihoodin all likelihood,, also involved some also involved some short short cutting of drafting process by copying cutting of drafting process by copying what Ms Devonish had already written.what Ms Devonish had already written. It was anticipated that further detail would be given to the claimant down the It was anticipated that further detail would be given to the claimant down the line with assistance of Ms N Williams’ expertise.line with assistance of Ms N Williams’ expertise. Ms Forte Ms Forte as Chair of as Chair of Governors is a volunteer and we accept was heavily reliant on advice and Governors is a volunteer and we accept was heavily reliant on advice and assistance from 2R’s legal and HR teamsassistance from 2R’s legal and HR teams. We accept she was, as she said in . We accept she was, as she said in evidence, doing what she thought was needed to get the process moving evidence, doing what she thought was needed to get the process moving forwardforward. . Ms ForMs Fortete diddid, however, ultimately, however, ultimately check and approve the letter. check and approve the letter. Ms Ms ForteForte considered it was aconsidered it was ann adequate summary of what adequate summary of what the allegation was the allegation was trying to get attrying to get at, and, and in the context of concerns about confidentialityin the context of concerns about confidentiality.. Ms ForteMs Forte was wrong about was wrong about it being an adequate it being an adequate summarysummary,, but we accept that was her but we accept that was her intentintent. . 2 27777.. The The claimant, as set out in her witness statement, claimant, as set out in her witness statement, was caused acute was caused acute distress by the content of the letter. There are of course other elements to the distress by the content of the letter. There are of course other elements to the letter that letter that also caused also caused distressdistress.b. B. But the claimant felt ut the claimant felt what she was being what she was being accused of was tantamount to a hate crime, andaccused of was tantamount to a hate crime, and one significant one significant element of element of that was the allegation of conveying racist views. that was the allegation of conveying racist views. This was partiThis was particularly so cularly so bearing in mind that the claimant was at the time the obearing in mind that the claimant was at the time the only BAME teacher at nly BAME teacher at Case No: 1601026/2022 67 the school the school, , had some had some 22 years service22 years service, had worked hard , had worked hard to promote a to promote a positive view of her race and culture in the school and challenge stereotypes positive view of her race and culture in the school and challenge stereotypes andand yetyet was being accused of racismwas being accused of racism.. The claimant perceived it The claimant perceived it as violating as violating her dignity and creating an intimidating, hostile, degrading, humiliating or her dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for her.offensive environment for her. 27 2788.. In our judgement it was In our judgement it was reasonable for the conduct to have that reasonable for the conduct to have that harassing harassing effect.effect. We accept thatWe accept that,, on the basis of the parental complainton the basis of the parental complaint,, it it was legitimate for the respondent to have concerns, including was legitimate for the respondent to have concerns, including whether there whether there had been alleged inappropriate use of the N word and to investigate thosehad been alleged inappropriate use of the N word and to investigate those concernsconcerns. . In accordance with the principle eIn accordance with the principle expressed inxpressed in Inward v PembertonInward v Pemberton generally an employer should be able to investigate agenerally an employer should be able to investigate alleged legitimate lleged legitimate disciplinary concernsdisciplinary concerns and follow their processesand follow their processes,, even if theeven if the allegationallegation relaterelatess to raceto race,, without without the actionthe action being considered to bebeing considered to be harassment. However, harassment. However, what what happened herehappened here was different. The letter did not properly reflect the nature of was different. The letter did not properly reflect the nature of the concern set out in the parental complaint. the concern set out in the parental complaint. There were other ways it could There were other ways it could have been drafted have been drafted in summary form in summary form that wouldthat would havehave bebeenen more accuratemore accurate. The . The allegation as drafted was allegingallegation as drafted was alleging, in effect,, in effect, the only BAME teacher in the the only BAME teacher in the school was prejudiced against others on racial grounds. school was prejudiced against others on racial grounds. The letter requiredThe letter required careful drafting and checkingcareful drafting and checking. T. Thhee lack of carelack of care displayed displayed simplysimply waswas not not reasonablreasonable. e. 27 2799.. This complaint of harassThis complaint of harassment related to race is well founded and is ment related to race is well founded and is upheldupheld against against 1R and 2R. 1R and 2R. Pursue the allegation through the disciplinary process that concluded on Pursue the allegation through the disciplinary process that concluded on 27 May 202227 May 2022 2 28080.. An independent investigation An independent investigation was conducted under the disciplinary was conducted under the disciplinary procedure following the outcome being substantiated by the strategy meetingprocedure following the outcome being substantiated by the strategy meeting. . This action This action was unwanted conduct from the claimant’s perspective.was unwanted conduct from the claimant’s perspective. We do We do not find thatnot find that the claimant has established a prima facie case thatthe claimant has established a prima facie case that the decision the decision to follow that process to follow that process was was related to related to racerace.. We do not consider it is We do not consider it is shown shown by by our findingour finding of harassmentof harassment in relation to Ms Forte’s letter. What was driving the in relation to Ms Forte’s letter. What was driving the respondents’ actions respondents’ actions was the substance of the concernswas the substance of the concerns relating torelating to the the parental complaint, and not parental complaint, and not its inaccurate recording in Ms Forte’s letter. its inaccurate recording in Ms Forte’s letter. 281. 281. IIn any event we would find the n any event we would find the respondentrespondentss hahaveve established through established through cogent evidence that it was notcogent evidence that it was not related to racerelated to race. As set out in the meeting . As set out in the meeting notes recorded at notes recorded at [117] the disciplinary investigation process was followed [117] the disciplinary investigation process was followed because because the complaint was considered to bethe complaint was considered to be a child protection matter given it a child protection matter given it had been substantiated under the safeguarding procedure, and because it had been substantiated under the safeguarding procedure, and because it was considered that the allegations outlined if substantiated by an was considered that the allegations outlined if substantiated by an investigation could constitute an act oinvestigation could constitute an act of gross misconduct. The disciplinary f gross misconduct. The disciplinary procprocedure therefore required the appointment of an external investigator. edure therefore required the appointment of an external investigator. We We accept the evidence of the respondents’ witnesses as recorded in the notes accept the evidence of the respondents’ witnesses as recorded in the notes that this was the genuine reasoning. The actionthat this was the genuine reasoning. The action was related to the need to was related to the need to follow follow what was understood to bewhat was understood to be the correctthe correct procedureprocedure,, following the following the safeguarding outcome. safeguarding outcome. 282. 282. The processThe process was not intended to have a harassing effectwas not intended to have a harassing effect. We have . We have already set out our findings on why we do not consider that those involved already set out our findings on why we do not consider that those involved were motivated by ill intent towards the claimant. were motivated by ill intent towards the claimant. Those involved were simply Those involved were simply Case No: 1601026/2022 68 following what they understood to be the process. W following what they understood to be the process. Whilst the claimant would hilst the claimant would have quite undershave quite understandably subjectively felt that being subject to a disciplinary tandably subjectively felt that being subject to a disciplinary investigation investigation process process did have a harassing effect, it did have a harassing effect, it is not in our judgement is not in our judgement objectively reasonable to objectively reasonable to for the conduct to be considered to have that effectfor the conduct to be considered to have that effect,, applying the applying the Inward v PembertonInward v Pemberton principle. principle. 2 28383.. When Ms When Ms N N Williams completed her Williams completed her investigation investigation report Ms Forte report Ms Forte decided that there should be an informal meeting with the claimantdecided that there should be an informal meeting with the claimant. On 27 . On 27 May 2022 that meeting was conducted by Mr Browne.May 2022 that meeting was conducted by Mr Browne. We have found the We have found the claimant was reminded of the claimant was reminded of the importance to consider pupils’ perceptions importance to consider pupils’ perceptions when dealing with difficult/sensitive topics in claswhen dealing with difficult/sensitive topics in class.s. To be given such adviceTo be given such advice was unwanted conduct from the claimant’s perspective. was unwanted conduct from the claimant’s perspective. 2 28484.. We would not consider the claimant has established facts from which We would not consider the claimant has established facts from which we could conclude that the giving of that advice we could conclude that the giving of that advice was related to racewas related to race. The . The claimant’s comparators were not in the same material circumstances as the claimant’s comparators were not in the same material circumstances as the claimantclaimant.. TTheir circumstances were all iheir circumstances were all individual and ndividual and took different pathways took different pathways basebased on those individual circumstancesd on those individual circumstances.. The claimant said there is no The claimant said there is no evidence that a white comparator would receive informal guidance having evidence that a white comparator would receive informal guidance having been exonerated through an investigation. But that misstates the burden ofbeen exonerated through an investigation. But that misstates the burden of proof and proof and misses the nuances of what was in the independent investigation misses the nuances of what was in the independent investigation report that report that Ms Forte and Dr Brown were considering. Ms Forte and Dr Brown were considering. 2 28585.. IIn any event we find that the respondent has established through n any event we find that the respondent has established through cogent evidence cogent evidence the giving of informal the giving of informal was not related to race. was not related to race. We accept We accept there was a legitimate basis for ththere was a legitimate basis for the decision to e decision to give the give the advice advice fromfrom Mr Mr Browne.Browne. The investigation did show the potentThe investigation did show the potential for pupils to walk away with ial for pupils to walk away with mixed messagesmixed messages; for example ; for example the pupil the pupil left with mixed emotions about left with mixed emotions about whether to trust the police or notwhether to trust the police or not. There was also, in our judgment, a . There was also, in our judgment, a legitimate legitimate basis to give feedback basis to give feedback about about the wisdom at times of sharing the wisdom at times of sharing personal family storiespersonal family stories or speaking about the year 10 pupil (albeit not or speaking about the year 10 pupil (albeit not identifying him) identifying him) which may have left the claimant vulnerable. which may have left the claimant vulnerable. We do not We do not consider that the complaint about alleged use of the N word consider that the complaint about alleged use of the N word was a was a point that point that was considered was considered to requireto require specific feedbackspecific feedback bearing in mind the investigation bearing in mind the investigation findings and the minutes at [249]. findings and the minutes at [249]. We do not find the meeting was, as We do not find the meeting was, as asserted by the claiasserted by the claimant, a fig leaf to justify earlier discriminatory treatment.mant, a fig leaf to justify earlier discriminatory treatment. It It was genuine feedbackwas genuine feedback.. 2 28686.. The claimant refers to Ms Forte saying in evidence that there was a The claimant refers to Ms Forte saying in evidence that there was a lack of understanding by all pupillack of understanding by all pupils what was saids what was said to the formto the form. It is alleged that . It is alleged that this was this was false and evidence of Ms Forte having prejudice towards the false and evidence of Ms Forte having prejudice towards the claimant and having a wilfully biased interpretation of the independent report. claimant and having a wilfully biased interpretation of the independent report. It is said this is evidence of a determination to prolong a process that had It is said this is evidence of a determination to prolong a process that had already caused harm. We do not agreealready caused harm. We do not agree wwith that interpretationith that interpretation. . Ms ForteMs Forte immediatelyimmediately went on to say she was talking about something discussed 18 went on to say she was talking about something discussed 18 monthsmonths earlierearlier. . Ms ForteMs Forte had already made clear she had not recently rehad already made clear she had not recently re--read read Ms N Williams’ report.Ms N Williams’ report. Ms Forte went on to make the point that Ms Forte went on to make the point that her her undersunderstandingtanding,, from when shefrom when she originallyoriginally read the reportread the report,, was was that that sufficient sufficient concerns were raiseconcerns were raisedd to hold that management meeting but not a formal to hold that management meeting but not a formal disciplinary.disciplinary. 287. 287. Ms Forte was not in our judgement displaying Ms Forte was not in our judgement displaying prejudice or a biased prejudice or a biased interpretation of the reportinterpretation of the report or or a determinationa determination to prolong the processto prolong the process to cause to cause Case No: 1601026/2022 69 harm harm. . ((Indeed, she had been agreeable to Mr Adkins’ request to Indeed, she had been agreeable to Mr Adkins’ request to see if the see if the safeguarding meeting could be reconvened.safeguarding meeting could be reconvened.)) On the particular evidential pointOn the particular evidential point the claimant is relying uponthe claimant is relying upon, Ms, Ms ForteForte was having difficulties rememberingwas having difficulties remembering. . WWhen giving evidence hen giving evidence onon the detail of the report, the detail of the report, she she said something that was said something that was a slip, recognised that it may have beena slip, recognised that it may have been a slip and not entirely accuratea slip and not entirely accurate as as she had not recently reshe had not recently re--read the reportread the report, and , and then did the correct thing inthen did the correct thing in concentrating onconcentrating on what she could now rememberwhat she could now remember aboutabout the decision making the decision making processprocess.. Ms Forte’sMs Forte’s recollection was not on a granular levelrecollection was not on a granular level because she had because she had not renot re--read the reportread the report,, but she but she could recall a concern about some lack of could recall a concern about some lack of understanding on the part of some pupils and which accords with the minutes understanding on the part of some pupils and which accords with the minutes of the meeting held with Mr Browne in 2022. of the meeting held with Mr Browne in 2022. 2 28888.. The claimant asserts that she was The claimant asserts that she was required to attend the meeting required to attend the meeting because the respondents felbecause the respondents felt a concern about a BAME teacher conductint a concern about a BAME teacher conductingg a a lesson that contained a discussion about the police. It is asserted that the lesson that contained a discussion about the police. It is asserted that the respondents did not trust threspondents did not trust thee claimant to conduct a lesson of that nature claimant to conduct a lesson of that nature oor r wish her to take such a lesson again. It is said the claimant wish her to take such a lesson again. It is said the claimant is an is an experienced experienced and capable history teacher and that a white teacher would be and capable history teacher and that a white teacher would be trusted to trusted to continue to teach the subject and all its nuancescontinue to teach the subject and all its nuances whereas the claimant was whereas the claimant was not.not. It is said the decisIt is said the decision was rooted in a discriminatory assumption that the ion was rooted in a discriminatory assumption that the claimant must have undermineclaimant must have underminedd the police as a black woman the police as a black woman based on based on prejudicial beliefs about the black community. prejudicial beliefs about the black community. We accept the evidence of Ms We accept the evidence of Ms Forte and Mr Browne as to the concerns they had about Forte and Mr Browne as to the concerns they had about some pupils being some pupils being potentially left uncertain what to think about the policepotentially left uncertain what to think about the police and which was and which was supported by some of the content of the investigation report. supported by some of the content of the investigation report. We find this was We find this was whawhat was in their mindt was in their mind,, and not and not these discriminatory motivations that the these discriminatory motivations that the claimant ascribes. The decision to hold the meeting and give advice was not claimant ascribes. The decision to hold the meeting and give advice was not related to race. related to race. 2 28989.. The claimant points to the fact the minutes of the meeting on 3The claimant points to the fact the minutes of the meeting on 3 May May 2022 say that as a result of the meeting disciplinary action could still be a 2022 say that as a result of the meeting disciplinary action could still be a possibility. But as Mr Browne observed that was not actually what was said to possibility. But as Mr Browne observed that was not actually what was said to the claimant in the meeting on 27 May or the letter of 6 June which was clear the claimant in the meeting on 27 May or the letter of 6 June which was clear that there was nthat there was not to be formal action under the disciplinary procedures.ot to be formal action under the disciplinary procedures. We We therefore do not consider it is indicative of some ill therefore do not consider it is indicative of some ill intent or discriminatory intent or discriminatory intent. The claimant also says that intent. The claimant also says that thethe informalinformal meeting was not provided for meeting was not provided for in the disciplinary policy. in the disciplinary policy. There is,There is, however, provision for however, provision for an informal an informal discussion with a headteacher outside of the disciplinary processdiscussion with a headteacher outside of the disciplinary process (but set out (but set out in the disciplinary procedure document)in the disciplinary procedure document) at [330]at [330]. . The sectionThe section describes how describes how this can take the form of advice, counsellingthis can take the form of advice, counselling,, trainingtraining,, instruction, coaching or instruction, coaching or other managerial strategies as appropriateother managerial strategies as appropriate. Moreover. Moreover,, it does also identify the it does also identify the potential for futurepotential for future disciplinarydisciplinary action. action. There is similar content at [378] There is similar content at [378] and and [408]. [408]. It was in accordance with the disciplinary policy.It was in accordance with the disciplinary policy. We do not find that the We do not find that the conductconduct,, in putting the claimant through the disciplinary process resulting in in putting the claimant through the disciplinary process resulting in the informal meetingthe informal meeting,, was related to race. was related to race. 2 29090.. We also would not find that either Mr Browne or Ms Forte had the We also would not find that either Mr Browne or Ms Forte had the purpose of creating the proscribed effect. purpose of creating the proscribed effect. The intention was simply to discuss The intention was simply to discuss the concerns and feedback with the claimant. the concerns and feedback with the claimant. The claimant would have The claimant would have subjectively felt there was a harassing efsubjectively felt there was a harassing effectfect,, but we do not in the but we do not in the circumstances consider it reasonable circumstances consider it reasonable to consider it to have that effect. Again, to consider it to have that effect. Again, the respondents were, in our judgement, entitled to conclude the disciplinary the respondents were, in our judgement, entitled to conclude the disciplinary process in that way process in that way without it without it being considered to meet the threshold of being considered to meet the threshold of Case No: 1601026/2022 70 harassment. harassment. They were following and applying a process that they were They were following and applying a process that they were entitled to do.entitled to do. This complaint of harassment related to race is not well This complaint of harassment related to race is not well founded and is dismissed. founded and is dismissed. Fail Failureure to investigatto investigatee the Claimant’s compthe Claimant’s complaint of 24 January 2022 through laint of 24 January 2022 through the disciplinary processthe disciplinary process 2 29191.. This was the complaint by the claimant, raised via Mr Adkins, against This was the complaint by the claimant, raised via Mr Adkins, against 3R that alleged harassment on the 3R that alleged harassment on the groundsgrounds of raceof race. Mr Adkins repeatedly . Mr Adkins repeatedly submitted that submitted that the complaintthe complaint should be dealt with under the disciplinary should be dealt with under the disciplinary procedure rather than the grievance procprocedure rather than the grievance procedure.edure. The grievance procedure, as The grievance procedure, as opposed to the disciplinary procedure,opposed to the disciplinary procedure, was not the claimant’s preferred was not the claimant’s preferred approachapproach and therefore it was unwanted conduct from her perspective.and therefore it was unwanted conduct from her perspective. 2 29292.. We do not consider that the claimant has shown a prima facie case We do not consider that the claimant has shown a prima facie case that that this decisthis decision was related to race. The claimant sought to compare her ion was related to race. The claimant sought to compare her complaints against 3R with complaints against 3R with how she herself was being treated. We did not how she herself was being treated. We did not consider this was a true comparative situationconsider this was a true comparative situation. The . The two two complaintcomplaints are s are different in content, detail and their originating background. different in content, detail and their originating background. 2 29393.. We would in any event find that the decision to proceed initially through We would in any event find that the decision to proceed initially through the grievance route and not the disciplinary route was not related to race. the grievance route and not the disciplinary route was not related to race. The The mmanaging staff in schools anaging staff in schools staff dstaff disciplinary procedure states at [326] that isciplinary procedure states at [326] that matters outside the scope of the procedure include staff grievances and matters outside the scope of the procedure include staff grievances and grievances lodged as a result of disciplinary action. It says that ifgrievances lodged as a result of disciplinary action. It says that if,, howeverhowever,, action under action under the staff grievance procedure results in the staff grievance procedure results in the need for disciplinary the need for disciplinary action then the disciplinary procedure wouldaction then the disciplinary procedure would thenthen applyapply.. There is similar There is similar guidance at [409].guidance at [409]. 1R decided to process it as a grievance (when they had 1R decided to process it as a grievance (when they had sufficient detail) sufficient detail) because that is what they understood the policy and practice because that is what they understood the policy and practice to beto be.. Ms Ballantine and Ms Forte confirmed that in their evidence. Ms Ballantine and Ms Forte confirmed that in their evidence. Such aSuch an n approach also accords with the approach also accords with the ttribunal’s ribunal’s general industrial experience as to general industrial experience as to how employers approach such a situationhow employers approach such a situation. It. It provides a mechanism for provides a mechanism for complaints against line managers to be investigatedcomplaints against line managers to be investigated and then, if there is a and then, if there is a disciplinary case, take the appropriate steps in that regard. disciplinary case, take the appropriate steps in that regard. 2 29494.. The fact that the The fact that the complaint against 3R made allegations of harassment complaint against 3R made allegations of harassment related to race does not of itself mean that the decision to initially investigate related to race does not of itself mean that the decision to initially investigate the concerns down the grievance route rather than the disciplinary route the concerns down the grievance route rather than the disciplinary route was was related to race. related to race. The deciThe decision was made because the complaints against 3R sion was made because the complaints against 3R needed to be particularised and then investigatedneeded to be particularised and then investigated,, and because the and because the procedures indicated such complaints should generally fall initially under the procedures indicated such complaints should generally fall initially under the grievance procedure. grievance procedure. 2 29595.. We also would not find that the aWe also would not find that the approach taken was done with the pproach taken was done with the purpose of creating the proscribed effect. purpose of creating the proscribed effect. It was done because it was seen as It was done because it was seen as the correct and appropriate way to capture and process the claimant’s the correct and appropriate way to capture and process the claimant’s complaints against 3R.complaints against 3R. The respondents were engaging with Mr Adkins to get The respondents were engaging with Mr Adkins to get him to particularise the complaint so they could actually investigate it.him to particularise the complaint so they could actually investigate it. Subjectively the claimant would consider Subjectively the claimant would consider the actionthe action to have a harassing to have a harassing effecteffect,, but we would not find that it was objectively rebut we would not find that it was objectively reasonable to take such a asonable to take such a view. The respondentview. The respondentss werewere followingfollowing their legitimate understanding of the their legitimate understanding of the policypolicy and appropriate practice,and appropriate practice, and they were also offering the claimant an and they were also offering the claimant an avenue of having her concerns investigated, initially via the grievance avenue of having her concerns investigated, initially via the grievance Case No: 1601026/2022 71 procedu procedure. re. This complaint of harassment related to race is not well founded This complaint of harassment related to race is not well founded and is dismissed. and is dismissed. Failu Failurere to refer to refer the Claimant to an occupational Health Assessment in the Claimant to an occupational Health Assessment in January 2022 January 2022 2 29696.. Mr Adkins made his request for a referral on 24 January 2022. Mr Adkins made his request for a referral on 24 January 2022. TheThe request was a loaded onrequest was a loaded onee given it did not simply assert an industrial injury but given it did not simply assert an industrial injury but aasssserted erted the injurythe injury was due to the claimant being harassed on ground of was due to the claimant being harassed on ground of ethnic origin by the parental complaintethnic origin by the parental complaint,, and the school’s subsequent alleged and the school’s subsequent alleged prejudicial management of it. prejudicial management of it. It is difficult to see It is difficult to see on the face of it on the face of it how the how the rrespondents could espondents could easily easily have agreed to such ahave agreed to such an assertion at thn assertion at that particularat particular time, time, or that such an assertion could have been fairly assessed at that time, or that such an assertion could have been fairly assessed at that time, particularly with the investigation outstanding. particularly with the investigation outstanding. On 1 February 2022 Ms Forte On 1 February 2022 Ms Forte responded to say she was taking advice, which was understandable in tresponded to say she was taking advice, which was understandable in the he particular particular circumstancescircumstances of the requestof the request.. TThe request was then passed to Ms he request was then passed to Ms Alderman. Alderman. 2 29797.. We have foundWe have found that onthat on 25 March 2022 Mr Adkins chased the 25 March 2022 Mr Adkins chased the attestation issue with Mr Browneattestation issue with Mr Browne. At that time the claimant’s return to work . At that time the claimant’s return to work was being arranged. was being arranged. The return to work meeting then took place on 5 April at The return to work meeting then took place on 5 April at which the which the request was discussed request was discussed where Ms Alderman said she was advising where Ms Alderman said she was advising on the matter on the matter collectively as it affected all schools in the collectively as it affected all schools in the ValeVale. Mrs Alderman . Mrs Alderman said that assaid that as the request was no longer relevant to the claimant (as the request was no longer relevant to the claimant (as the the claimantclaimant was returning to workwas returning to work, was on full pay and had not been absent for , was on full pay and had not been absent for over 5 months)over 5 months),, if necessaryif necessary Mr Adkins should raise it with the Local Mr Adkins should raise it with the Local Authority Authority separatelyseparately.. There is no evidence that he then did soThere is no evidence that he then did so, including on behalf of , including on behalf of the claimant.the claimant. 2 29898.. We do not find that the We do not find that the cclaimant returned to work against clinicalaimant returned to work against clinical l advice advice for fear of suffering loss of payfor fear of suffering loss of pay. The OH reports . The OH reports demonstratesdemonstrates that that the the claimantclaimant was keen to returnwas keen to return. . 2 29999.. There was not a referral There was not a referral to OH (or anyone else) for an attestation in to OH (or anyone else) for an attestation in January 2022. We accept from the claimant’s perspective that would be January 2022. We accept from the claimant’s perspective that would be unwanted conduct. unwanted conduct. We We cannot see the basis on which it is said such inaction cannot see the basis on which it is said such inaction was related to racewas related to race,, and the claimant has not shown a prima facie case in that and the claimant has not shown a prima facie case in that regard.regard. 300. 300. In any event we would find the respondentIn any event we would find the respondentss hhaveave establish adequate establish adequate evidence to evidence to show that it was not related to race. There was a delay in show that it was not related to race. There was a delay in January 2022 because Mrs Forte needed to taJanuary 2022 because Mrs Forte needed to take adviceke advice from HRfrom HR about about something that something that was a novel point and was a novel point and Mr Adkins had put forward in a Mr Adkins had put forward in a complicated way.complicated way. That wasThat was perfectly understandable. perfectly understandable. The applicationThe application was was then not in Ms Forte’s handsthen not in Ms Forte’s hands. . There was then delay because There was then delay because Mrs AldermanMrs Alderman needed time to needed time to look at it as being a complicated point about the Burgundy look at it as being a complicated point about the Burgundy Book termsBook terms,, and being one which had the potential to affect the whole of the and being one which had the potential to affect the whole of the Vale of Glamorgan teaching staff. Vale of Glamorgan teaching staff. Mrs Alderman also the Mrs Alderman also the did not understanddid not understand that the point was of remaining that the point was of remaining relevance to relevance to the claimant because of the the claimant because of the claimant’s return to work.claimant’s return to work. These things are not related to race.These things are not related to race. That the That the claimant was saying that her injury was because she had been harassed on claimant was saying that her injury was because she had been harassed on grounds of ethnic origin did not of itself make the response to the requesgrounds of ethnic origin did not of itself make the response to the request for t for Case No: 1601026/2022 72 referral to OH related to race. referral to OH related to race. This complaint of harassment related to race is This complaint of harassment related to race is not well founded and is dismissed. not well founded and is dismissed. Other complaints Other complaints 301 301. The claimant seeks in her closing submissions to . The claimant seeks in her closing submissions to advance advance discrimination/harassment complaints that are not thdiscrimination/harassment complaints that are not the pleaded e pleaded case. For case. For example, the placing of a LSA in her classroom and the eventual decision at example, the placing of a LSA in her classroom and the eventual decision at the reconvened strategy meeting to the reconvened strategy meeting to find the complaint to be unsubstantiated find the complaint to be unsubstantiated rather than unfounded. It is not possible to advance such a rather than unfounded. It is not possible to advance such a claim in that wayclaim in that way.. TThis would have been clear to Mr Adkins given the time spent during the his would have been clear to Mr Adkins given the time spent during the course of the hearing clarifying the issues, discussing whethercourse of the hearing clarifying the issues, discussing whether applications to applications to amend amend were being madewere being made and dealing with such applicationsand dealing with such applications. . We therefore We therefore concentrate this Judgment on the List of Issues (as amended concentrate this Judgment on the List of Issues (as amended when the when the hearing went part heard to allow the further particularisation of the complaints hearing went part heard to allow the further particularisation of the complaints and for further wand for further witnesses to be called)itnesses to be called) as they represent the pleaded case and as they represent the pleaded case and what the parties understood to be the pleaded case. what the parties understood to be the pleaded case. Time limits Time limits 302 302.. The claimant has succeeded on one complaint The claimant has succeeded on one complaint of harassment related of harassment related to race: the letter of to race: the letter of 24 November 2021. 24 November 2021. The primary time limit expired on The primary time limit expired on 23 23 February 2022. TFebruary 2022. The claimant did not enter Acas early conciliation until he claimant did not enter Acas early conciliation until 28 July 28 July 20222022 some 4 months out of time. Acas conciliation ended on 24 August 2022 some 4 months out of time. Acas conciliation ended on 24 August 2022 and the ET1 claim formand the ET1 claim form promptlypromptly presented opresented on 1 September 2022. n 1 September 2022. 303 303.. We have to consider whether to extend the time limit on just and We have to consider whether to extend the time limit on just and equitable grounds. We have a very broad discretioequitable grounds. We have a very broad discretion. n. There is no presumption in favour of an extension, and it is for the claimant to satisfy us it is just and equitable to extend time. There is no set list of factors or checklist that we have to take into account, and we have to assess all the factors in the particular case we consider relevant to whether it is just and equitable to extend time. Factors which it is often customarily relevant to consider can include matters such as: the length of and reasons for the delay; the relative prejudice the parties would suffer if the extension is granted or refused (which can include the extent to which the cogency or availability of evidence is affected by delay); the promptness with which the claimant acted once she knew of the possibility of taking action; and the steps taken to obtain professional advice. No one factor is automatically paramount: it is a weighing and balancing exercise. Factors can pull in opposite directions and often the factors are interrelated to an extent. It is not the case, for example, that if there is no good reason for delay it inevitably results in an extension of time being refused. Nor is it the case, again for example, that the absence of prejudice to the respondent, would be inevitably determinative. Everything has to be weighed in the equation in the exercise of our broad discretion. 304. Factors that we took into account include the length of the delay. A four month delay compared against a 3 month limitation period is not a short delay, although likewise it is not egregious. We also took We also took into account that the into account that the cclaimant laimant was represented throughout bywas represented throughout by her trade union her trade union who would have who would have knowledge of knowledge of the time limithe time limits that applyts that apply and the capability of advising the and the capability of advising the claimant about such time limits and assisting with drafting a lodging a claim. claimant about such time limits and assisting with drafting a lodging a claim. Case No: 1601026/2022 73 305 305.. InIn In terms of prejudice, Ms Forte was able to give evidence at the In terms of prejudice, Ms Forte was able to give evidence at the reconvened hearing and give evidence as to why she reconvened hearing and give evidence as to why she approved the letter and approved the letter and thought it reflected the parental complaint. The individual who provided the thought it reflected the parental complaint. The individual who provided the first draft of the letter was not called as a witnessfirst draft of the letter was not called as a witness,, but we have no reason to but we have no reason to suppose the respondents could not do so if they so wished and considered suppose the respondents could not do so if they so wished and considered tthe individual had relevant evidence to give. The documents were availablehe individual had relevant evidence to give. The documents were available. . We therefore can identifyWe therefore can identify no real evidential prejudice. The respondents do no real evidential prejudice. The respondents do however suffer a prejudice if time is extended in having to meet a claim they however suffer a prejudice if time is extended in having to meet a claim they could otherwise successfullycould otherwise successfully defend on time limits. defend on time limits. 306. 306. In terms of prejudice to the claimant, iIn terms of prejudice to the claimant, if time is not extended the f time is not extended the claimant will not succeed in her otherwiseclaimant will not succeed in her otherwise oneone successful complaint. It is a successful complaint. It is a complaint about a serious and important matter. But it is also relevant to note complaint about a serious and important matter. But it is also relevant to note that it was not the claimant’s only complaint. Whilst not ultimately successful, that it was not the claimant’s only complaint. Whilst not ultimately successful, she did bring others and had the opportunity to have those complshe did bring others and had the opportunity to have those complaints fully aints fully heard and adjudicated uponheard and adjudicated upon their merits. their merits. 307. 307. We considered that a particular important factor We considered that a particular important factor on the facts of this on the facts of this case was whether it was reasonable to have expected the claimant, with the case was whether it was reasonable to have expected the claimant, with the assistance of her union, to have assistance of her union, to have identified the comidentified the complaint and then plaint and then presenpresent itt it within timewithin time. . It It links in with the reason for delay.links in with the reason for delay. We gave real consideration to We gave real consideration to the fact that Mr Adkins the fact that Mr Adkins was readily firing off accusations of discrimination to was readily firing off accusations of discrimination to various individuals within the primary time limit. various individuals within the primary time limit. On 3 DecemberOn 3 December he he accused accused the the safeguarding team, amongst other things, of racism. safeguarding team, amongst other things, of racism. On 10 December On 10 December there was the collective grievance (albeit not aboutthere was the collective grievance (albeit not about race discriminationrace discrimination but but alleged trade union victimisation and sex discriminationalleged trade union victimisation and sex discrimination). ). On 11 December Ms On 11 December Ms N Williams, the investigator, was told she may be joined as a coN Williams, the investigator, was told she may be joined as a co--respondent respondent to a discrimination claim. to a discrimination claim. On 24 January Mr Adkins in seeking the burgundy On 24 January Mr Adkins in seeking the burgundy book referral book referral alleged harassment related to race. On 24 January Mr Adkins alleged harassment related to race. On 24 January Mr Adkins made the compmade the complaint that 3R had harassed the claimant on the laint that 3R had harassed the claimant on the grounds of race grounds of race and sex. In that sense heand sex. In that sense he, on behalf of the , on behalf of the claimantclaimant, was, was quick to accuse but quick to accuse but slow toslow to thenthen litigate.litigate. 308. 308. But we also considered it important to But we also considered it important to reflect on the situation from the reflect on the situation from the perspective of the claimant. perspective of the claimant. For the majority of the For the majority of the primary limitation period primary limitation period the claimant had very little information available to herthe claimant had very little information available to her becausebecause Ms Forte’s Ms Forte’s letter did not set out the specifics of the letter did not set out the specifics of the alleged personal views considered to alleged personal views considered to be racist that it was alleged the claimant had said. be racist that it was alleged the claimant had said. Some of the context had Some of the context had been discerned by the time of Mr Adkins email of 3 December but not the full been discerned by the time of Mr Adkins email of 3 December but not the full picture.picture. The claimant and Mr Adkins were understandably trying to obtain the The claimant and Mr Adkins were understandably trying to obtain the parental complaint or other underlying materialparental complaint or other underlying material from Ms N Williams, Ms Forte from Ms N Williams, Ms Forte and a subject access request. and a subject access request. 309. 309. The sample questionsThe sample questions for the investigationfor the investigation were not received until 11 were not received until 11 January 2022January 2022 and the redacted parental complaint not received until 11 and the redacted parental complaint not received until 11 FebruaryFebruary by which time there were only a couple weeks left of the primary by which time there were only a couple weeks left of the primary limitation period. limitation period. At that pointAt that point in timein time, it was also, in our judgement, important, it was also, in our judgement, important to reflect uponto reflect upon some other relevant points. First, once they had the parental some other relevant points. First, once they had the parental complaint Mr Adkins complaint Mr Adkins was trying to resolve matters. He was trying to get the was trying to resolve matters. He was trying to get the ssafeguarding meeting reconvened. He wrote to Ms Forte on 11 February afeguarding meeting reconvened. He wrote to Ms Forte on 11 February seeking seeking a preliminary a preliminary meeting with the claimant and themeeting with the claimant and the part 5 meeting bepart 5 meeting be reconvened,reconvened, suggesting that in the meantimesuggesting that in the meantime the school stay the disciplinary the school stay the disciplinary investigationinvestigation whichwhich could then be could then be then rethen re--evaluateevaluatedd on the conclusion of the on the conclusion of the Case No: 1601026/2022 74 part 5 process part 5 process. . Mr AdkinsMr Adkins saisaid the NASUWT would thd the NASUWT would then withdraw their en withdraw their complaint. complaint. In the primary limitation period Ms Forte agreed to that approachIn the primary limitation period Ms Forte agreed to that approach,, and the claimant did not know until either day of or the day before the expiry and the claimant did not know until either day of or the day before the expiry of the time limit that the safeguarding team had said it could not be of the time limit that the safeguarding team had said it could not be reconvened at that time. reconvened at that time. 310. 310. Second, Second, the claimant was not just concerned about the letter from Ms the claimant was not just concerned about the letter from Ms ForteForte, she, she was facing the whole pressure of the ongoing disciplinary was facing the whole pressure of the ongoing disciplinary investigation against her that includeinvestigation against her that includedd an allegation of gross misconduct with an allegation of gross misconduct with all its potential implications for her professional career. all its potential implications for her professional career. We consider that it is We consider that it is also important to take into aalso important to take into account the claimant’s poor health and acute ccount the claimant’s poor health and acute distress as recorded in the contemporaneous distress as recorded in the contemporaneous OH records. Again, we consider OH records. Again, we consider that that makes it understandable that the claimant’s focus at the time would have makes it understandable that the claimant’s focus at the time would have been on the wider picture of the ongoing disciplinary invesbeen on the wider picture of the ongoing disciplinary investigation, tigation, trying to trying to obtain details of the specific allegations, and then obtain details of the specific allegations, and then seeking to see if a different seeking to see if a different approach could be negotiated, rather than approach could be negotiated, rather than one one particular point relating to Ms particular point relating to Ms Forte’s letter. Forte’s letter. 311. 311. Weighing all ofWeighing all of the factors into account and in particular the situation the factors into account and in particular the situation the claimant was in at the time the primary time limit expiredthe claimant was in at the time the primary time limit expired,, and the lack of and the lack of forensic prejudice to the respondents, we decided it was just and equitable to forensic prejudice to the respondents, we decided it was just and equitable to extend time. extend time. Remedy Remedy 312. 312. We We consider it is liconsider it is likely the parties will be able to agree remedy. The kely the parties will be able to agree remedy. The claimant has succeeded on oneclaimant has succeeded on one discretediscrete poinpoint. It. It strike us that remedy is likely t strike us that remedy is likely to focus on the additional injury/to focus on the additional injury/lossloss caused by the caused by the particular wording of Ms particular wording of Ms Forte’s letter but against thForte’s letter but against the background of a process that the claimant was e background of a process that the claimant was going to face going to face in any event. in any event. 313. 313. The parties should write to the The parties should write to the ttribunal after 28 days confirming ribunal after 28 days confirming whether they have been able to agree remedywhether they have been able to agree remedy. If they have not . If they have not reached reached agreementagreement,, they should write they should write indicating the likely length of a remedy hearing indicating the likely length of a remedy hearing and whether they consider any remedy directions are neededand whether they consider any remedy directions are needed..