Miss R SedanoClaimantHarris Federation VARIATION OF JUDGMENT FOLLOWING RECONSIDERATION UNDER RULE 70 Reasons Pursuant to the claimant’s application under Regulation 10A (2) Employment Tribunals Regulations 2013, the Tribunal’s Judgment made by a legal officer and sent to the parties on 15 September 2021 has been considered afresh and is varied under Rule 70 (Reconsideration), being necessary in the interests of Justice. In consequence the complaint of Unfair Dismissal ( only) is dismissed upon the claimant’s withdrawal.RespondentDate 8 October 2021
JUDGMENT
[1]The respondent did not discriminate against the claimant because of her race contrary to section 13 Equality Act 2010.[2]The respondent’s application for a costs order under rule 76 of the 2013 Employment Tribunal Rules of Procedure is refused.
REASONS
[1]Following ACAS Early Conciliation from 10 January to 10 February 2020 the claimant presented a complaint to the Tribunal on 19 February 2020. There was a preliminary hearing on 28 October 2020.[2]At this hearing the Tribunal heard from the claimant herself. It also heard from the respondent, Ms Senior, the school Principal and dismissing officer, and from Ms Cumberbatch, the appeals officer. All parties relied on written witness statements.[3]The Tribunal had sight of an agreed bundle to page 223; all references are to this bundle unless otherwise stated. All references are to the twenty four hour clock unless otherwise stated.
The Claims
[4]There were two claims originally made to the Tribunal. Unfair dismissal had been dismissed prior to the hearing. Accordingly, the Tribunal was only concerned with a claim for direct race discrimination under Section 13 Equality Act 2010.
The Issues
[5]The relevant issues were set out in the agreed list in the bundle as follows. The parties confirmed that there were no amendments. The Claimant is Spanish. Direct Race Discrimination (s13. EA)2.1 Did the Respondent subject the Claimant to the following treatment falling within section 39 of the Equality Act 2010, namely dismissing her and not upholding her appeal against her dismissal because of her race ?2.2 Did the Respondent treat the claimant as alleged less favourably than it treated or would have treated the comparators because of her race? The Claimant relies upon the following comparators:a. Ms Andrea Palmer. the Claimant's work colleague; andb. Hypothetical comparator. namely a British teacher in otherwise the same circumstances as the Claimant.2.3 If so, can the Claimant prove primary facts from which the Tribunal could properly and fairly conclude that the difference in treatment was because of the protected characteristic?2.4 If so. what is the Respondent’s explanation? Can it prove a nondiscriminatory reason for any proven treatment? The Facts The School[6]The respondent is a state funded school not run by a local authority. It is a girls’ secondary school with about 850 pupils and 100 staff. The school serves an area with high deprivation indices and has a correspondingly high number of safeguarding issues and concerns.[7]According to the head teacher, the school receives about 600-800 safeguarding reports every year. These range from very minor matters - a child falling asleep in class – to the very serious - sexual abuse. There are, on average, 50 alerts in a week. This was, it was agreed, an unusually high number of safeguarding alerts for a school. As a result, the school has six safeguarding leads and assistant leads. There is also an on-site police officer and an educational welfare officer.[8]In respect of the staff, Ms Senior told the tribunal that roughly one-fifth of the staff have English as a second language. Based on the Tribunal and, in particular, its lay members knowledge of the region and the school’s catchment area, the Tribunal found this evidence plausible and accepted it.[9]The claimant started work on 1 January 2018 as a teacher of modern languages (Spanish). It was not in dispute that the claimant prior to events material to this claim had received no warnings or other disciplinary matters. She had received some support in her early days in respect of teaching challenging classes, but this appeared to have resolved itself. The School’s Safeguarding Training and Policies[10]In September 2019 the claimant, in common with all staff, attended two inset days before the beginning of the Autumn term. This included safeguarding training. A number of documents for reading (page 79) were sent to all staff including the claimant on 3 September 2019. The claimant, as requested, in common with other staff, signed to confirm that she had read the documents. These documents including the ‘Keeping Children Safe in Education’ (KIDSE), statutory guidance. KIDSE amongst other matters, stated that staff should raise safeguarding concerns immediately. The claimant also was provided with the school’s safeguarding policy.[11]During the inset days, the claimant received safeguarding training including slides. She said that the safeguarding training only took about fifteen minutes. On the same day the claimant, and all staff, were sent hard copies of a safeguarding referral form. However, the respondent’s preferred option for reporting any safeguarding issues was to use CPOMS, an online child protection system. The hard copy of the form was in case the online system was not working.[12]The school’s safeguarding policy starting at page 113 included the following:- “Responsibilities and Immediate Action Safeguarding and promoting the welfare of children in our school is the responsibility of the whole school community. All adults working … are required to report incidents of actual or suspected child abuse or neglect to the designated safeguarding lead who is a member of the school’s leadership team … If a child is in immediate danger or is at risk of harm, a referral will be made to Children’s Social Care and/or the police immediately. Anyone can make a referral. Where referrals are not made by the designated safeguarding lead, the designated safeguarding lead will be informed as soon as possible. Safeguarding referrals should be made to Southwark Multi-Agency Safeguarding Hub known as MASH … the parent/carer will normally be contacted to obtain their consent before a referral … However, if the concern involves, for instance, alleged or suspected child abuse … nothing should be said to the parents/carer ahead of the referral, but a rationale for the decision to progress without consent should be provided with the referral.”[13]Ms Robson was identified as the safeguarding lead. There was also a flowchart of action at page 15 stating that staff with concerns must take immediate action. They would then follow the child protection policy and speak to the safeguarding lead. This would lead to a number of different outcomes – no action / pastural help / referral to social services / immediate investigation by police – as appropriate. Safeguarding Incident[14]This involved pupil ‘A’, a twelve-year old girl. The claimant was her form tutor.[15]The tribunal had sight of the CPOMS record. According to this, on 23 September 2019 at 10:31, a head of house and a safeguarding lead spoke to a parent of a pupil who reported a safeguarding incident. The parent told the school that their daughter had reported that pupil A had told their daughter that she (Pupil A) was being sexually abused. The information was therefore third hand. It was said that pupil A had told a fellow pupil, who then told her parent, who then told the school.[16]According to the CPOMS record, the incident was logged, the head of house had spoken to the reporting parent and had then spoken to the reporting child and reassured her. There was no record of the time of the parent’s call, only that it was written up by 10:31. At 11:45 there was a CPOMS entry by Ms Palmer who was head of house for pupil A and another safeguarding lead. This referred to a lengthy email stating that she had spoken to pupil A, who had denied that the abuse had happened. Ms Palmer had also spoken to a social worker who had told her to email MASH, the Multi-Agency Safeguarding Hub at Southwark.[17]The tribunal saw an email from Ms Palmer at 12:57 to MASH making reference to a timeframe. The Tribunal accepted that this referred to the “going home time” for Pupil A, about 15.10.[18]MASH replied at 14:44 saying that they would get back within three days. Ms Palmer called a duty social worker stressing the urgency, a minute later. Ms Palmer was subsequently told by a team leader social worker at 15:53 to let pupil A go home, that the police would be informed, and Ms Palmer was not to inform the parents until that time. CPOMS also records that Ms Palmer spoke to the school’s on-site police officer.[19]According to Ms Senior, who had no direct knowledge of this incident, it was standard practice that when a serious safeguarding issue - especially sex abuse - arose, the pupil would be kept at school unless and until social services had signed off sending her home. As this seemed plausible and rational, the Tribunal accepted that this was the respondent’s practice.[20]The CPOMS record showed that next morning, 24 September, MASH informed Ms Palmer of a meeting and asked for more information.[21]The claimant, as pupil A’s form tutor, had not been informed of any of this. According to the respondent, this was its standard practice based on KIDSE. Paragraph 4 of KIDSE said that if there were any doubt about sharing information, staff should speak to safeguarding leads. It warned that concerns about sharing information must not prevent child protection.[22]On 24 September during lunchbreak at about 1:45 pupil A made a safeguarding disclosure to the claimant. She said that the allegations of sexual abuse were true. Pupil A said that she had not told Ms Palmer the truth the day before. She said that she had been subject to sexual abuse for over five years by a man described as an uncle. He was not a relative but a business partner of her father who lived with the family. She had a younger sister who had not been abused. The uncle had threatened to harm her parents if she revealed the abuse. He also told her not to study as he, a man in his fifties, was going to marry her. She had told her parents the previous evening, 23 September, who were very upset. The claimant said that during the disclosure, she was focused on helping and listening to Pupil A.[23]The claimant stated that she had no free time that afternoon. Immediately after the safeguarding disclosure, at 14:05 pupils started to arrive for her 14.10 lesson. She then had to deal with a “student conference” at about 15:10. Ms Senior gave evidence, that the tribunal accepted, that his referred to the claimant having sent a pupil out of the 14.10 class and then had a meeting with the pupil to reset the relationship immediately the class ended. The claimant then had a lesson intervention finishing at 16:15.[24]The Tribunal accepted the claimant’s unchallenged evidence that her 14.10 class were a second set and were a noisy and difficult class. The claimant had no teaching assistant with her.[25]Ms Robson, the safeguarding lead, and Ms Palmer both have offices in the same corridor as the claimant’s classroom.[26]Before the Tribunal and throughout the disciplinary and the investigation, the claimant agreed that she should have acted more promptly on receipt of the safeguarding disclosure. The claimant said that this was the first disclosure made to her.[27]After 16.15 the claimant said that she tried but failed to log the disclosure onto CPOMS. There was no evidence of this. She did not try to log the disclosure another way, for instance, using the paper form.[28]By this time Pupil A had gone home at her normal home time at about 15:10. The claimant told the respondent consistently that she had thought that Pupil A would be safe because the parents were at home, and they knew about the abuse. She also told the Tribunal that the abuser was not at the home anymore.[29]Ms Palmer passed the claimant’s classroom at about 16:30. There were different accounts of how their conversation occurred, that is who initiated it, either the claimant or Ms Palmer. Ms Palmer’s record on CPOMS on 24 September said that she came to say hello to the claimant. At the end of the conversation, the claimant asked about pupil A. Ms Palmer said that this was confidential, and then the claimant passed on the disclosure that day. That was consistent with the account given in Ms Palmer’s investigatory interview about nine days later.[30]The claimant’s account was that she saw Ms Palmer passing and called her in because she could not access CPOMS. This is more or less the account that the claimant gave in her investigatory meeting. CPOMS showed that Ms Palmer made an entry very soon after speaking to the claimant at 16:48. It recorded that the claimant was saying that the abuse allegation was true.[31]Ms Palmer then reported to Ms Robson. Ms Robson sent Ms Palmer home because it was said that she was extremely distressed, and she was past her working hours. Ms Robson, the designated safeguarding lead, asked the claimant to log on to CPOMS. When that proved impossible, she sent her a CPOMS link which still did not work. Ms Robson then told the claimant to set the disclosure in an email. The email was sent at 17:48 and the claimant stayed after working hours to do this.[32]The claimant’s emails set out what Pupil A had said and concluded as follows:- “Her mum works night time and his dad coming back home sometimes around 11.00pm so she and her sister are with this man since 7.00pm, before they used to have a babysitter but no anymore because she need to pick up her son. She said that her parents doesn’t want the school to get involved but she will speak to them today again and she will come back to me tomorrow.” (sic)[33]The claimant’s case before the Tribunal was that she understood that the alleged abuser was no longer in the home. In the view of the Tribunal, this was not a natural meaning of the email even making allowance for it being written in the claimant’s second language. When this was put to the claimant, she said that the father would be at home, although she agreed that he might not be there until 11.00pm.[34]In the view of the Tribunal, the natural meaning of the email was the abuser might be in the home, and the children might be left alone with him although the parents were now aware of the abuse.[35]Ms Robson contacted social services, Ms Senior, the police, and the local authority designated officer (LADO). Eventually the school rang 999 as recorded by CPOMS.[36]There was a CPOMS entry dated 25 September by the school’s police officer. This stated that the police had visited the family home on 24 September at 18:48. The parents had stated that the abuse had happened years ago. It was not serious, and they had made the abuser leave. CPOMS shows that pupil gave the same account to Ms Palmer the next day, 25 September.[37]Ms Robson approached the claimant on 26 September and told her that she should have reported the disclosure earlier. It was the respondent’s case that Ms Robson decided the claimant now understood that she should have reported it immediately, and so there was no need to suspend the claimant.[38]The claimant’s evidence was that Ms Robson had badly upset her by saying that she should have reported the disclosure immediately. She used the phrase ‘emotional abuse’. The claimant’s case was that she thought this was the end of the matter and so she did not take the subsequent investigation so seriously.[39]Ms Senior decided that the claimant’s conduct needed to be investigated. The respondent wrote to the claimant on 1 October inviting her to an investigatory meeting. The allegations were:• failing to disclose a serious safeguarding disclosure of sexual abuse,• agreeing to maintain confidentiality and• putting the student at risk.[40]The letter warned the claimant that the matter might amount to gross misconduct and could lead to summary dismissal. The claimant had the right to be accompanied and was offered support from the employee assistance programme. The letter enclosed the disciplinary procedure.[41]The claimant’s case was that she did not properly understand the letter. However, the Tribunal did not accept this for the following reasons. The letter clear and there was no reason why the claimant would not understand it. Although English was her second language, she taught in an English school and there had been no suggestions of a difficulty in understanding written English.[42]Mr Grocott, the assistant principal, was appointed as the investigating officer. He interviewed the claimant, Ms Palmer and Ms Robson.[43]The tribunal saw two versions of the investigatory report in the bundle. The tribunal raised this with the parties, neither of whom had referred to this. When Ms Senior was recalled to give evidence, she said that she did not know why this had happened. Her assumption, and it was no more than that, was that there was a first draft with red marking and then a second final draft. The first draft, for instance, left a gap in stating the claimant’s length of service.[44]The material change between drafts was that the supposed first draft recommended progress to a disciplinary, immediate training on safeguarding, and reminding of the statutory framework of safeguarding. However, in the final report, the only recommendation was to proceed to a disciplinary.[45]Ms Senior decided to progress the matter to a disciplinary. The claimant was sent the investigation report with appendices including the safeguarding documents and all interview notes of the witnesses. The letter inviting her to a disciplinary hearing offered her the right to be accompanied and warned of the possibility of summary dismissal and referred to gross misconduct.[46]The claimant attended a disciplinary meeting before Ms Senior on 17 October 2019 at page 51. The claimant was represented. At the meeting the investigating officer made his case. The claimant made her case. The claimant confirmed that she had read and signed the safeguarding documents.[47]The claimant said that she accepted that she had made the disclosure late and that this was a mistake. She said that she and Ms Palmer talked and then she told her about pupil A.[48]When asked why she did not send an email about the disclosure earlier, she said that she did not think about it in the moment. When she was asked whether, if she had not seen Ms Palmer, was it her intention to make a disclosure, she said that she did not know. She then said that she wanted to tell Ms Palmer as soon as possible. She said that the student was of Indian heritage and in such cultures, they try to keep such matters within the family and at home. Ms Senior’s evidence was that this indicated that the claimant was treating a student of Indian origin differently, although she did not put this to the claimant.[49]According to the minutes which were accepted as accurate although not verbatim, the claimant’s final statement was as follows:- “Said that she was sorry and this would not happen again. Stated that she would learn from the mistake and reiterated that it would not happen again. Said that it was all done in the moment, but life was busy - although this was not an excuse. Stated that she is only human and can make mistakes but knows that if something like this happens in the future, she will report it immediately.”[50]Ms Senior made the decision to dismiss summarily and informed the claimant in a letter of 18 October. According to the letter, the allegation was:- ‘On 24 September 2019 you failed to disclose a serious safeguarding disclosure of sexual abuse made by one of your coaching students. You also agreed with student to maintain confidentiality until the next day. The failure to report in a timely manner put the student at further risk.[51]The reasons for dismissal were stated as follows:- 1. In respect of the failures to disclose – There is no dispute that student A disclosed a serious allegation to you and you did not forward or refer this to a more senior member of staff. At the time of the disclosure, I felt that there was adequate opportunity to refer this matter to the Academy’s DSL or head of house, both of whose offices were close to your room. 2. You also agreed with the student to maintain confidentiality until the next day. I noted the comment made by your representative, but from the information available, I am of the view that you did agree not to disclose this on the day in question and agreed that student A could leave the Academy and speak to her parents about the alleged sexual assault. Student A had said that she did not want the school involved and it was for this reason you chose to keep the matter confidential at the time. 3. The failure to report in a timely manner put the student at further risk. The conversation with student A took place at 1.45 on 24 September but you did not notify anyone about this until your conversation with Ms Robson (this should have been Ms Palmer) until 4.30pm. This meeting was significantly later and as a consequence student A had been allowed to return home which put her at significant risk.”[52]The letter concluded “…I have reasonable belief that your actions amounted to gross misconduct as follows:-• Safeguarding concerns either in or out of the Academy• Serious unprofessional behaviour exhibited within the Academy• Gross negligence and failing to attend to or carry out the agreed duties of the post.”[53]It was agreed that the effective date of termination was 17 October but in the view of the Tribunal, it must have been 18 October.[54]The claimant appealed by way of a letter on 6 November 2019. The grounds of appeal were:- i. The proper procedure was not followed and this materially affected the decision; ii. The decision reached was incorrect and the conclusion reached was supported by the evidence presented; iii. The sanction awarded was too severe taking into account the nature of misconduct and the mitigating circumstances.[55]There was then a discussion between the respondent’s HR department and the claimant about the logistics of the appeal. The claimant, in the view of the Tribunal, was naturally reluctant to attend school in school time and the respondent eventually accepted this.[56]By way of an email of 2 December the claimant requested an interpreter with experience in employment law. The respondent replied the next day saying that she was a teacher of foreign languages, and her understanding of English was sufficient. The respondent’s evidence to the tribunal was that it believed her English was sufficient.[57]The appeal officer was not told of this and said that this should have been her decision to make. Ms Senior was unable to recall, she told us, if she was asked for input but would have advised that the claimant was proficient in English.[58]The appeal was before Ms Cumberbatch who was the executive principal of two other schools run by the same organisation as the respondent. She had not heard an appeal before, and she was not known to the claimant. She said her role was ‘to ensure that a proper procedure had been followed, the sanction was not too severe, and that the decision reached was correct based on the evidence presented’. This was not a rehearing but a review.[59]The appeal meeting was on 18 December 2019. The claimant was represented by an outside person which the respondent permitted. The claimant told the Tribunal that the appeal was the first time when she felt that she was, in effect, on top of her case and understood what was happening.[60]Whilst there was very considerable consistency between what the claimant said at her disciplinary and at the appeal, there was a difference, at least, in tone. For instance, at the end of the disciplinary meeting the claimant made, essentially, a full apology. In the grounds of the appeal, she said that the sanction was unduly harsh and that she should have, in effect, been given a second chance. At the meeting, she said that the respondent itself had failed to follow the safeguarding procedure and caused her harm because she was not told about the first allegation on 23 September. She said that this was discrimination.[61]At the appeal meeting, Ms Senior presented the respondent’s case and then the claimant and her representative presented the claimant’s case.[62]When the claimant raised her concerns about insufficient English, she was asked if she had previously raised any concerns about English difficulties in her job, and she said that she had not.[63]According to the minutes, the claimant made a number of comments about why she thought the pupil was not put at risk. She said that “the pupil said she told her parents, so I knew she was safe”. She also said, “I thought she was safe because her parents knew”. She also said, “that there was no risk because the pupil had informed her parents”.[64]The Tribunal found that the claimant did make these comments. This was because the claimant had not specifically disputed them and, if the minutes were not verbatim, they accurately represented what took place.[65]The claimant’s case also was that there could not have been an irreparable breach in the respondent’s trust in her because she was not suspended. This did not fit with the fact that she was now not trusted.[66]Ms Cumberbatch rejected the appeal by way of a letter of 24 December 2019.
The Law
[67]The law is set out in the Equality Act 2010 as follows: 13 Direct discrimination(1) 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.(2) If the protected characteristic is age, A does not discriminate against B if A can show A's treatment of B to be a proportionate means of achieving a legitimate aim.(3) If the protected characteristic is disability, and B is not a disabled person, A does not discriminate against B only because A treats or would treat disabled persons more favourably than A treats B.(4) If the protected characteristic is marriage and civil partnership, this section applies to a contravention of Part 5 (work) only if the treatment is because it is B who is married or a civil partner.(5) If the protected characteristic is race, less favourable treatment includes segregating B from others… 23 Comparison by reference to circumstances (1) On a comparison of cases for the purposes of section 13, 14, or 19 there must be no material difference between the circumstances relating to each case. 136 Burden of proof (1) This section applies to any proceedings relating to a contravention of this Act. (2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred. (3) But subsection (2) does not apply if A shows that A did not contravene the provision. Submissions[68]The Tribunal received written submissions from the claimant’s representative and oral submissions from both representatives. Applying the Law to
The Facts
[69]The Tribunal had to decide whether the respondent treated the claimant less favourably - by dismissing her and by refusing her appeal - than it treated or would have treated a comparator because of her race, being her non-British nationality. The claimant relied on Ms Andrea Palmer as an actual comparator and in the alternative, on a hypothetical comparator - being a British teacher in otherwise the same circumstances.[70]As to the burden of proof, the Tribunal had to decide whether the claimant could prove primary facts from which the Tribunal could properly and fairly conclude that the difference in treatment for the way in which she was treated was because of her protected characteristic of race and if so, what was the respondent’s explanation. Could it provide a non-discriminatory reason?[71]In this case, the acts relied upon – dismissal and refusal of appeal - were not inherently discriminatory, therefore (as per James v Eastleigh Borough Council [1990] IRLR 572) the Tribunal must look for the operative or effective cause. This requires consideration of why the alleged discriminator(s) acted as they did. Although their motive will be irrelevant, the Tribunal must consider what consciously or unconsciously was their reason? This is a subjective test and is a question of fact. See Nagarajan v London Regional Transport 1999 1 AC 502, “if racial grounds … have a significant influence on the outcome, discrimination is made out”. See also the judgment of the Employment Appeal Tribunal in Amnesty International v Ahmed [2009] IRLR 884.[72]The Tribunal also had regard to the comments of Lord Phillips, then President of the Supreme Court, in R (E) v Governing Body of JFS [2009] UKSC 15, also a case under the legacy discrimination. In deciding what were the grounds for discrimination, a Tribunal is simply required to identify the factual criteria applied by the respondent. This is simple shorthand for determining whether the prescribed factor operated on the alleged discriminator’s mind. Whilst any discriminatory reason must be an effective cause of treatment, it does not have to be the only reason. The Equalities and Human Rights Commissions Employment Code states that the protected characteristic needs to be a cause of the less favourable treatment, but it does not need to be the only or even the main cause.[73]As to the burden of proof, the Tribunal directed itself in line with the guidance of the Court of Appeal in Igen Ltd v Wong and Others CA [2005] IRLR 258. At the first stage, the Tribunal has to make findings of primary fact. It is for the Claimant to prove on the balance of probabilities facts from which the Tribunal could conclude, in the absence of an adequate explanation, that the Respondent has committed an act of discrimination. At this stage of the analysis, the outcome will usually depend on what inferences it is proper to draw from the primary facts found by the Tribunal. It is important for Tribunals to bear in mind in deciding whether the Claimant has proved such facts that it is unusual to find direct evidence of discrimination. Few employers would be prepared to admit such discrimination and in some cases the discrimination will not be an intention but merely an assumption.[74]The Court of Appeal reminded Tribunals that it is important to note the word “could” in respect of the test to be applied. At the first stage, the Tribunal must assume that there is no adequate explanation for those facts. At this first stage, it is appropriate to make findings based on the evidence from both the Claimant and the Respondent, save for any evidence that would constitute evidence of an adequate explanation for the treatment by the Respondent.[75]However, the burden of proof does not shift to the employer simply on the Claimant establishing a difference in status and a difference in treatment. Those bare facts only indicate a possibility of discrimination. “Could conclude” must mean that a reasonable Tribunal could properly conclude from all the evidence before it; see Madarassy v Nomura International [2007] IRLR 246. As stated in Madarassy, “the bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material from which a Tribunal could conclude that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination”.[76]If the Claimant does not prove such facts, the claim will fail.[77]If, on the other hand, the Claimant does prove on the balance of probabilities facts from which the Tribunal could conclude, in the absence of an adequate explanation, that the Respondent has committed the act of discrimination, unless the Respondent is able to prove on the balance of probabilities that the treatment of the Claimant was in no sense whatsoever because of her protected characteristic, then the Claimant will succeed.[78]The Tribunal also directed itself in line with Hewage v Grampian Health Board [2012] UKSC 37 that the burden of proof provisions will require careful attention where there is room for doubt as to the facts necessary to establish discrimination. They have nothing to offer where the tribunal is in a position to make positive findings on the evidence one way or the other.[79]In Laing v Manchester City Council [2006] ICR 1519, the EAT stated that: “No doubt in most cases it will be sensible for a Tribunal formally to analyse a case by reference to two stages. But it is not obligatory on them formally to go through each step in each case… An example where it might be sensible for a Tribunal to go straight to the second stage is where the employee is seeking to compare his treatment with a hypothetical employee. In such cases the question whether there is such a comparator – whether there is a prima facie case – is in practice often inextricably linked to the issue of what is the explanation for the treatment, as Lord Nicholls pointed out in Shamoon …. it must surely not be inappropriate for a Tribunal in such cases to go straight to the second stage. … The focus of the Tribunal’s analysis must at all times be the question of whether or not they can properly infer race discrimination. If they are satisfied that the reason given by the employer is genuine one and does not disclose either conscious or unconscious racial discrimination, then that is the end of the matter. It is not improper for a Tribunal to say, in effect, “there is a nice question as to whether or not the burden has shifted, but we are satisfied here that, even if it has, the employer has given a fully adequate explanation as to why he behaved as he did and it has nothing to do with race”’[80]In Chief Constable of Kent Constabulary v Bowler EAT 0214/16 Mrs Justice Simler (then President of the EAT) stated that tribunals, “…must avoid a mechanistic approach to the drawing of inferences, which is simply part of the fact-finding process. All explanations identified in the evidence that might realistically explain the reason for the treatment by the alleged discriminator should be considered. These may be explanations relied on by the alleged discriminator, if accepted as genuine by a tribunal; or they may be explanations that arise from a tribunal’s own findings.’[81]The first question for the Tribunal was whether Ms Palmer was, as contended by the Claimant, a true comparator. Was there no material difference between the circumstance when determining whether the claimant had been treated less favourably?[82]Lord Scott in Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] UKHL 11 stated that a comparator must be in the same position in all material respects as the victim save that only he or she is not a member of the protected class.[83]The tribunal firstly considered if Ms Palmer was an actual comparator. Ms Palmer was British and so did not share the claimant’s protected characteristic.[84]Both parties, when addressing the comparison between Ms Palmer and the claimant, concentrated on their respective roles and this was the context in which they invited the tribunal to make the comparison.[85]The Tribunal agreed with the claimant that what might be referred to as a higher level of safeguarding performance would be expected from Ms Palmer. Ms Palmer was a designated safeguarding lead and had far more experience and training than the relatively junior claimant who said she was dealing with her first significant safeguarding disclosure. Further, Ms Palmer had much more time to deal with safeguarding disclosures, rather than the claimant who was occupied with challenging teaching duties.[86]Nevertheless, when comparing how the claimant reacted on 24 September and how Ms Palmer reacted on the 23 September, the tribunal bore in mind that Ms Palmer was dealing with an allegation from a third-party whereas the claimant was dealing with a disclosure from the victim herself.[87]However, in the view of the Tribunal, the more fundamental point was on what basis was Ms Palmer said to be in materially the same circumstances as the claimant? The Tribunal understood the claimant’s case to be that the claimant’s failures or shortcomings in respect of the safeguarding incident were materially similar to failures or shortcomings by Ms Palmer.[88]The Tribunal accordingly considered what were Ms Palmer’s failings or shortcomings in respect of safeguarding. Here the Tribunal was not entirely clear about the claimant’s case. The submissions did not rely on any specific incident. However, the Tribunal carefully considered the claimant’s statements and cross-examination, and it found six possibilities:- i. Ms Palmer had not told the claimant of the allegation on the 23 September. The Tribunal did not find that this was a breach of the safeguarding procedure. There was nothing in either KIDSE or the Harris Academy Safeguarding Policy that a form teacher had to be informed. The Tribunal accepted that the respondent’s practice was not to inform form teachers. The respondent had given a reasoned explanation for this - that it was vital for the pupil’s confidentiality to be protected. Whilst the claimant might believe that the pupil’s best interests were served by sharing the safeguarding issue with the form teacher, and in practice that might have resulted in a different reaction from the claimant on 24 September, the Tribunal accepted that Ms Palmer followed the respondent’s safeguarding practice. There was therefore safeguarding failure or shortcoming. ii. Ms Palmer had delayed reporting the disclosure on 23 September. The evidence before the Tribunal was that CPOMS showed the first entry at 10:31, which the Tribunal found was the earliest that the matter was likely to have been handed to Ms Palmer. An hour and fifteen minutes later, Ms Palmer recorded on CPOMS that she had read the original report, spoken to pupil A, spoken to a duty social worker, explained that they were working to a timeframe and decided to send an email. When MASH replied saying that there was a three day wait, she immediately reverted stressing urgency. The tribunal found that pupil A was kept in school until social services had signed off sending her home, as this was consistent with Ms Palmer’s reference to a timeframe and the fact that she was chasing MASH for an urgent response. Accordingly, the Tribunal could see no sign of undue delay here by Ms Palmer and therefore no safeguarding shortcoming or failure. iii. The third factor relied on by the claimant was set out in her witness statement. It said that Ms Palmer should have consulted with Ms Robson; she should not have let pupil A go home on the 23 September and that she had not have informed MASH, and the student should have been interviewed by the police. There was no explanation as to why a failure to consult with Ms Robson constituted a failure or shortcoming in safeguarding and the Tribunal did not accept that it was. Ms Palmer was a designated safeguarding lead. CPOMS showed as a matter of record that she had informed MASH. In respect of the other two matters, the evidence showed that these decisions were not made by Ms Palmer but that she sought guidance. CPOMS showed that Ms Palmer let pupil A go home because she was instructed to do so by a social worker. She did not make this decision herself. It was social services, not Ms Palmer, who decided that Pupil A went home without being interviewed by the police. In the view of the Tribunal, this made her circumstances fundamentally different from the claimant. She had acted on instructions from social services who were informed before the pupil was permitted to go home. This compared to the claimant who - to the extent that she made a conscious decision - let the pupil go home before MASH or anyone else had been informed. iv. According to the claimant’s submissions, Ms Palmer breached the safeguarding policy by not telling the parents before she had spoken to MASH. In cross-examination, it was said that Ms Palmer and/or Ms Robson were at fault for not telling the parents before they informed MASH. That remained the claimant’s case before the Tribunal. The submissions expressly relied upon Ms Palmer not as an actual comparator, but as what was described in Shamoon as a “building block” of a hypothetical comparator. Nevertheless, the Tribunal took the point into account in considering whether Ms Palmer was an actual comparator. The Tribunal found that this did not constitute a breach of safeguarding policy or as a shortcoming. The policy in terms stated that parents must not be informed first if there was sexual abuse. v. Ms Palmer had breached the safeguarding policy by not telling MASH her rationale for not telling the parents. In view of the Tribunal, this might be a technical breach of the policy although the Tribunal was unable to make a specific finding as it had not seen the full documents. However, the Tribunal considered the purpose of this rule which was, in the view of the Tribunal, to inform and warn social workers, if it was not clear why the parents had not been informed. In this case, it was self-evident why the parents had not been informed. It was a case of sexual abuse in the home. There was no need to explain, and this was corroborated by the fact that the social worker impressed upon the Respondent not to tell the parents. Further, the tribunal had no faith that the claimant had any real confidence in this allegation. The claimant had misinterpreted the safeguarding policy at point (iv) – she mistakenly thought that the parents should be informed before MASH when the opposite was true. Further, the claimant had not raised this point until she was taken to it during submissions by the Tribunal. In effect, the claimant at this stage appeared to be looking for something that Ms Palmer had done that was not in line with the safeguarding policy and eventually found something. This was not something she herself had spotted. Her case was based on a misreading of the safeguard policy. Accordingly, there was no failure or shortcoming in safeguarding in Ms Palmer’s not explaining to MASH why she had not informed the parents. This was otiose. vi. Ms Palmer was permitted to go home when distressed on 24 September. The claimant had to stay to complete the disclosure report. The Tribunal found that Ms Palmer was not, once she had finished her emails, necessary to the process. Her role could be played by Ms Robson. However, it was only the claimant who could write up the conversation with pupil A. There was no suggestion that the claimant had had to stay after she had passed on the information by way of an email. The circumstances were not materially the same.[89]Accordingly, the Tribunal found that Ms Palmer’s circumstances were not comparable, her circumstances were not materially the same and she was not an actual comparator.[90]The Tribunal went on to consider a hypothetical comparator.[91]As Lord Hoffman pointed out in Watt (formerly Carter) and ors v Ahsan 2008 ICR 82, HL, the parties often dispute whether the difference between a putative comparator and the claimant are materially different. In most cases:- “it will be unnecessary for the Tribunal to resolve this dispute because it should be able by treating the putative comparator as an evidential comparator and having due regard to the relationship and circumstances and other evidence, to form a view on how the employer would have treated a hypothetical person who was a true statutory comparator”.[92]What were the facts from which the tribunal could conclude that a hypothetical comparator would have been treated differently? According to the claimant, the treatment of Ms Palmer shed useful light on how the respondent would have treated a truly hypothetical comparator and/or useful light on what the respondent’s motivation, conscious or unconscious.[93]The tribunal took into account its findings above on Ms Palmer as an actual comparator. It had not found Ms Palmer at fault as to safeguarding, save for her failure, on the evidence before the tribunal, to tell MASH in the referral why the parents had not been informed. The Tribunal had found that there was an obvious reason for this, and it did not constitute a material failure or shortcoming.[94]The claimant in her submissions also relied on the Head of House who had taken the call at 10:31 on 23 September and was the first person to find out about the allegation. The claimant’s case, it was understood, was if this person was British and if there were any safeguarding shortcomings on her part, and she had not been investigated, this was evidence that such shortcomings by British employees were judged less harshly.[95]In the view of the Tribunal, there were two fatal problems with this submission. Firstly, there was no evidence as to the nationality of the head of house. Without that, it was not possible to use her as an evidential comparator because there was no evidence. Secondly, there was no evidence of shortcomings on her behalf. The only evidence before the Tribunal was the CPOMS entry. This recorded that by 10:31 she had spoken to reporting parents, spoken to the reporting child, reassured her, and had the reporting child put something in writing. On the face of that, there were no shortcomings. The Tribunal did not know at what time the parent had called in but there was nothing on the CPOMS to indicate any delay. Again, there was no evidence of any shortcomings.[96]The tribunal considered whether, viewed in the round, there was anything in the CPOMS to indicate to the respondent that there were any shortcomings with the head of house’s actions. In the view of the tribunal, there was no red flag or anything else to trigger an investigation.[97]The Tribunal was unclear if it was the claimant’s case that the respondent was, in effect, running something of a ‘leaky ship’ on safeguarding; that its safeguarding practices were poor, but it was only when a non-British person made a mistake that anything was done. If this was the case being made, and it was not made in terms, there was no evidence for this. There was no evidence of shortcomings in the Pupil A incident which was the only safeguarding incident about which the Tribunal was informed.[98]The tribunal therefore turned to other facts on which it could conclude in the absence of an explanation that there had been discrimination.[99]It was referred to Lord Justice Mr Justice Elias, as he then was in Bahl v Law Society 2003 IRLR 640, EAT, as follows:- “The significance of the fact that treatment is unreasonable is that a Tribunal will more readily in practice reject the explanation given than it would if treatment were reasonable. In short, it goes to credibility.[100]The claimant’s submissions relied on Eagle Place Services Ltd v Rudd [2010] IRLR 486 (EAT) which in the view of the Tribunal was an example of how this principle operates in practice. The fact that a Tribunal must be careful not to mistake unreasonable behaviour for inherently discriminatory behaviour, does not stop a Tribunal considering unreasonable behaviour as part of its natural matrix.[101]The claimant’s case was that the respondent’s behaviour was unreasonable because it had made findings of fact not based upon evidence. Essentially, the reasons for dismissal were not made out. The Tribunal analysed these as follows.[102]The first charge against the claimant was that she had failed to disclose safeguarding. In the view of the Tribunal, this overlapped with the third charge, that she had not done so timeously. The fact was that the claimant did fail to pass on the safeguarding allegation until 16.30 after pupil A, had gone home. The respondent’s finding that this put the pupil A at significant risk was not an unreasonable finding. It appeared from the claimant’s email, that the alleged abuser was still in the house. The claimant’s case at Tribunal was that he was not there but was no evidence that she knew this at the time and her contemporaneous email indicated otherwise.[103]Further, the claimant’s contention that she believed that the abuser was no longer in the home, was inconsistent with her assumption that he would not be alone with Pupil A because the pupil had told her parents about the abuse and therefore, they would, despite their normal timetable, be at home. If the claimant knew that the abuser was no longer in the home, it was irrelevant what time the parents got home.[104]The trouble with the claimant’s approach was, as the respondent’s Counsel pointed out, that was not her decision to make. It was a decision for the social worker. Additionally, pupil A’s accounts were problematic and it was unreasonable of the claimant to place faith in what she was told. There were reasons to doubt her credibility because pupil A had already changed her story once, as the claimant knew.[105]It was, therefore, reasonable for the respondent to conclude that there was a possible risk to pupil A because her parents were not necessarily an effective barrier to the risk.[106]The second charge against the claimant was the agreement to keep confidentiality. The claimant pointed out that this could not be true because she had, in fact, disclosed to Ms Palmer. The respondent had relied on the claimant’s email which said:- “she, [pupil A], said her parents did not want the school to get involved. That she would speak to them today again and she will get back to me tomorrow”.[107]The respondent viewed this as evidence that the claimant had agreed to keep the abuse confidential. Its case was that the natural meaning was that the school would not get involved until the parents were spoken to. In the view of the Tribunal, this was not an unreasonable finding that the claimant had let the pupil believe that no one was going to be told until the next day. The claimant’s email was consistent with this. The claimant’s account in the investigatory meeting was somewhat inconsistent and then she said, “I do not remember”. The respondent was clearly exercised about this and so it asked twice in the investigatory meeting, and the claimant did not say that she told the pupil she was going to tell Ms Palmer.[108]However, the Tribunal felt that the respondent did not give credit to the claimant that she did, in fact, disclose, and action was taken, and the police attended. In the view of the Tribunal, the finding that she agreed to keep the matter confidential was a harsh interpretation of the claimant’s actions.[109]The Tribunal went onto to consider other potential unreasonableness. The Tribunal found that the respondent had held against the claimant the lack of any record of her inability to access CPOMS. In the view of the Tribunal, this was not on its face logical. It was equally possible that the claimant had made an attempt to access and failed, as that she had not made any attempt. On the surface, this was a neutral fact taken against the claimant.[110]The respondent’s case in cross-examination was that, in effect, it reached that conclusion because the claimant had failed to use the paper form, which indicated that she did not try to access the system at all. Ms Palmer had alleged that the claimant, in effect, only told Ms Palmer because Ms Palmer happened to speak to her, that is the claimant did not seek out Ms Palmer because of the CPOMS issue.[111]The Tribunal could know what actually happened on the 24 September, but the Tribunal could not find it unreasonable for the respondent to accept Ms Palmer’s evidence as to the interaction, which was consistent, in preference to the claimant’s evidence which was less consistent. Accordingly, the tribunal did not accept that the respondent’s finding that the claimant had failed to try to access CPOMS was unreasonable or discriminatory.[112]In general terms the Tribunal accepted the respondent’s submission that its procedure was unexceptional. An incident arose, the respondent investigated, the claimant was warned of the possible outcome from the start, the respondent went beyond the statutory procedure by permitting a companion in the investigatory meeting and an outside companion in the appeal. The claimant was given all documents before the hearing. Before the hearing, she was warned of the outcome and received an appeal before an independent person. She was referred to an employee assistance programme.[113]Ms Senior did not put it to the claimant that she was concerned that the claimant was treating pupil A differently because of her race and/or culture. However, in the view of the tribunal, this point was obvious, especially to someone working in state education in London. The claimant herself brought up the cultural issues – it was not an accusation made by the respondent.[114]The claimant also submitted that the respondent was inconsistent in its allegation that the claimant did not act quickly enough. Was it a lack of immediacy (the appeal), or was it not acting within a reasonable timeframe (the investigation) or something else such as not acting “in a timely manner”? In effect, the respondent would have taken more care with its allegations with a British national with better English.[115]In the view of the Tribunal, the respondent’s use of different formulations did inject some unnecessary confusion into the enquiry. However, the claimant knew at the latest from Ms Robson on the 26 September that the respondent’s concern was the delay. She herself admitted delay. In the investigatory meeting she said that Ms Robson had told her off about this on 26 September. The delay was the entire focus of the investigatory business in meetings. The tribunal could not accept that the claimant was at any material disadvantage and the respondent therefore acted unreasonably.[116]There was no evidence before the tribunal of statistical patterns showing disadvantage towards non-British staff, for instance that they were more commonly disciplined or dismissed.[117]The tribunal had pointed out to the parties that the investigations officer’s report appeared to have been redrafted to take out the recommendations which were consistent with the claimant remaining in employment – such as training. There was little evidence on this. The Tribunal was aware that the reports do naturally get redrafted before a final version is decided. There was no explanation from the respondent save Ms Senior’s speculation and there was no challenge to this from the claimant. In the view of the Tribunal, this was not sufficient to suggest unreasonable conduct.[118]The claimant contended that the failure to suspend suggested that the decision to dismiss the claimant summarily was not reasonable. It was said that these two decisions did not sit comfortably with each other. However, there was no evidence that these two decisions were taken by the same person.[119]Claimants who are suspended sometimes argue before the Tribunal that this is evidence that culpability had been prejudged. The Tribunal is aware of the difficulty faced by employers in this situation as to whether to suspend or not. In the view of the Tribunal, any tension between the failure to suspend and the finding of summary dismissal went to the harshness of the sanction which is considered below.[120]The claimant stated that it was unreasonable for the employer not to take into account mitigation. In the tribunal’s view, that was another point that went to the harshness of the sanction. Essentially, the claimant’s case was that the harshness of the sanction was evidence that nationality was an operative cause of the decision firstly to dismiss and then uphold it on appeal.[121]The Tribunal considered the harshness of the sanction. The tribunal recognized that the respondent was a specialist in safeguarding in education and the Tribunal was not. The Tribunal was not qualified to second-guess a school carrying out its core functions, including the safeguarding of children.[122]Ms Senior and Ms Cumberbatch dealt with these very difficult matters on a daily basis and the tribunal did not. It was evidently a significant part of their work. The tribunal accepted Ms Senior’s evidence that the catchment area had very high indices of deprivation and the school had hundreds of safeguarding reports per year, although mostly less serious. The school had six safeguarding leads. In effect, they were the experts, and the tribunal was not.[123]The respondent is responsible to the Department of Education, to the local authority, to parents and to wider society. Safeguarding failures are a matter of significant media interest. The tribunal was wary of telling the respondent witnesses how to do their job. There was no suggestion that respondent should treat safeguarding failures as other than very serious matters.[124]Nevertheless, the Tribunal was of the opinion that there was mitigation for what the claimant had done. The claimant’s job went beyond simply teaching. It was not enough for her simply to come to work and teach Spanish. One of her roles, as shown by KIDSE ,was at all times to be aware of safeguarding issues and to take immediately the correct approach, including when confronted by what might be shocking and upsetting disclosures.[125]The claimant’s only training appeared to be part of an inset day; there was no suggestion that this day was solely dedicated to safeguarding. She said, unchallenged, that she only received fifteen minutes training. The tribunal saw at page 81 that the staff had confirmed that they had read nine documents including KIDSE around safeguarding including matters such as Prevent. This was on top of their other duties. There was no suggestion that the safeguarding training included anything more than slides and a talk. There was no reference to ensuring the training had been successful, such as multiple-choice testing or group work.[126]In making these comments, the Tribunal is very much aware of the time pressures that schools are under, including on inset days, and the increasingly wide range of things that schools and teachers are asked to take responsibility for. Nevertheless, in the view of the tribunal, if the claimant’s account is accurate, the respondent may wish to reassess the effectiveness of its safeguarding training,[127]In respect of the claimant’s personal circumstances, she had six years of employment in the United Kingdom. She was not in-experienced. She had worked nearly two years at a school with a high number of safeguarding reports. She should have known about safeguarding rules. She had a clean record.[128]The claimant told the tribunal that, in effect, she did not defend herself as well as she thought she could have done because she did not take the investigation seriously enough. The tribunal found that she should have been under no illusion as to the seriousness. The respondent’s correspondence was clear. The respondent was entitled to take what the claimant said at face value without making allowances for any misunderstanding by the claimant, particularly when the claimant was represented at every meeting.[129]In the view of the Tribunal, the claimant had not come across anything like Pupil A’s disclosure before. She had never identified a safeguarding issue before. The tribunal cannot know if this was good judgment on her part but accepted that this disclosure was likely to have been the first serious disclosure.[130]The fact that pupil A made the disclosure to the claimant showed that she had a good relationship with the pupil and the pupil trusted her. The disclosure was made at lunchtime in a busy and difficult day. The claimant had been entirely unaware that this was an on-going issue and therefore would have been shocked. Immediately afterwards, she had a challenging bottom set class which involved her having to exit a pupil and then meet with a pupil afterwards urgently. She then had an intervention. The parties did not explain exactly what this was, but the tribunal proceeded on the assumption that it was contact time with pupils. It was only at 16:15 that she had time to collect her thoughts and think about what to do.[131]In the view of the Tribunal, she was very seriously distracted by her demanding job. She was on her own without a teaching assistant. In the view of the Tribunal, it would have been difficult for the claimant simply to have left her class to go to Ms Robson or Ms Palmer, particularly when there were considerable behavioural issues. The claimant had a very short timeframe in which to make a very important decision. She was caught up in doing her job. The claimant got it wrong as she very frankly accepted at the disciplinary meeting.[132]Further mitigation was that the claimant did inform Ms Palmer, albeit after the pupil had gone home. The safeguarding disclosure was passed on. In the view of the Tribunal, the respondent did not give the claimant enough credit for this.[133]Notwithstanding the fact that the tribunal was not safeguarding experts, dismissal appeared to the tribunal to be a somewhat harsh decision. The tribunal was somewhat surprised by Ms Senior saying that she took the claimant’s lack of contrition into account. At the dismissal, the claimant was expressly contrite and said she wanted to do better in future. Arguably she was somewhat less so at the appeal, but that could not have inputted into Ms Senior’s decision.[134]However, the tribunal accepted Ms Senior’s view that the claimant did not understand that it was not acceptable safeguarding practice to assume that parents were always effective at preventing abuse, and therefore Ms Senior had reasons not to trust the claimant to make better decisions in future. For the avoidance of doubt, the Tribunal did not take into account Ms Senior’s evidence that it later transpired that Pupil A’s parents had colluded in the abuser’s fleeing. Nevertheless, even if this did not occur in pupil A’s case, it was an example of why the respondent saw an assumption that parents will always be effective barriers to abuse, as not compliant with the safeguarding of children.[135]The tribunal was bolstered in its finding that Ms Senior reasonably believed that the claimant failed to understand this, because the claimant’s case in the tribunal was in part based on a misunderstanding of the safeguarding policy in this respect. She alleged that Ms Palmer had failed to comply with the safeguarding policy when she told MASH about the disclosure, without first telling the parents. In fact, telling the parents first would have been a breach of the policy. Even by the time of the tribunal hearing, the claimant still failed to demonstrate that she understood this.[136]However, a dismissal decision which appeared somewhat harsh in certain lights to the Employment Tribunal with nothing further did not amount to facts from which the Tribunal could conclude in the absence of explanation that there had been race discrimination. The tribunal was accordingly able to make positive findings on the evidence that the claimant was not discriminated because of her nationality. To put it another way, the reason why the respondent dismissed the claimant was that she had failed to comply with safeguarding duties and did not demonstrate sufficient understanding of her failure; it was not because of her nationality.[137]The Tribunal went on to consider the appeal. The Tribunal came to the same conclusion because of - broadly - the same factors. The Tribunal reminded itself that this was not a hearing. It was a review. If anything, the claimant was perhaps a little less contrite before the appeal.[138]The claimant made allegations about other safeguarding failings, but the Tribunal had not found these to be reasonable. She also made repeated statements that she thought that there was no risk because the parents were at home. This in the view of the tribunal showed a continued fundamental misunderstanding of safeguarding. This was not her decision to make.[139]There was no evidence that, had the claimant been British, Ms Cumberbatch would have reviewed this decision in any other way. She was from a different school and there was no suggestion of any connection. It was true that Ms Cumberbatch’s letter had some poor phrasing. The claimant did not tell pupil A to go home, as Ms Cumberbatch stated, in fact she let her go home. However, the tribunal did not find that this indicated a failure on Ms Cumberbatch’s part to engage with the facts. The effect was the same – the chance to keep the pupil in school was lost.[140]The Tribunal finally considered the question of the lack of interpreter at the appeal. This was not a case of indirect discrimination. It was not said that there was a provision, criterion or practice of failing to provide interpreters which put people who are not British at a disproportionate disadvantage.[141]Accordingly, the issue was the motivation in the respondent’s mind for a failure to provide an interpreter. Ms Cumberbatch believed she should have made the decision but was not informed.[142]In the view of the Tribunal, there was perhaps a lack of empathy here. A person who was trying to save their job might need an interpreter when they might not in their daily job. However, the request was made very late – after the decision to dismiss, which did not indicate that the claimant felt strongly about the issue. The claimant was required to have English of a good enough standard to teach in a UK state school. She told the tribunal that she had never asked for assistance with an interpreter before. Therefore, the refusal to provide an interpreter, still less one with experience of employment law, was not unreasonable and did not constitute direct nationality discrimination.[143]Accordingly, the Tribunal found that the claimant was not discriminated against because of her race and the claim was dismissed. COSTS[144]The respondent made an application for a costs order under Rule 76 of the 2013 Rules of Procedure. Rule 76 provides as follows:- A Tribunal may make a costs order or preparation time order and shall consider whether to do so where it considers that (a) a party … has acted vexatiously, abusively, disruptively or otherwise unreasonably in the bringing in the proceedings (or part) have been conducted.[145]The Tribunal heard from Mr Williams on behalf of the respondent and Mr Howells on behalf of the claimant. It had sight of a second bundle which almost entirely consisted of correspondence between the parties’ representatives which was without prejudice save as to costs. There was no dispute that the Tribunal could consider these documents.[146]The Tribunal directed itself in line with the Court of Appeal decision in Yerrakalva v Barnsley Metropolitan Borough Council and another 2012 [ICR 420]. This reminds Tribunals that costs orders in the Employment Tribunal are the exception not the rule. Tribunals are reminded that they are not a costs jurisdiction. In the courts, a losing party is normally expected to pay the winning party’s costs as a matter of course. This is known as costs following the event. Parliament specifically created the Employment Tribunal without this. Nevertheless, it has given Tribunals the power to make costs orders.[147]In the Court of Appeal in Yerrakalva also reminded parties not to lose sight of the totality of the circumstances. The vital point in exercising the discretion to award costs is to look at the whole picture. Tribunals must ask whether there has been unreasonable conduct by the paying party in bringing or conducting the case, and in doing so, identify the conduct, what was unreasonable about it and what effect it had?[148]The Court of Appeal also, in the case of McPherson v BNP Paribas (London Branch) 2004 [ICR1398] instructed Tribunals to have regard to ‘the nature, gravity and effect of a party’s unreasonable conduct.’[149]The Tribunal reminded the parties that it had three considerations. In the event, the tribunal only heard submissions on the first two. o Firstly, was its discretion to award costs triggered under Rule 76? o Secondly, if so, should that discretion be exercised? o Thirdly, if so, how much should be awarded?[150]The Tribunal considered whether the claimant’s conduct in bringing and conducting the proceedings was unreasonable. In the view of the Tribunal, the claimant was entitled to query the motivation behind the employer’s decision. The Tribunal had questioned the harshness of the sanction applied and upheld, which was the act of discrimination on which the claimant relied.[151]In the view of the Tribunal, the purpose of the discrimination law set out by Parliament is to permit employees to challenge and investigate an employer’s motivation before a Tribunal. There are inherent risks in litigation. In the view of the Tribunal, it was not unreasonable for the claimant to ask the Tribunal to determine her case and the motivation of her employer. This was a case where the oral judgment took about one hour to deliver. This included some discussion of the law, but the Judgment was mostly an analysis of the facts and application of the law to the facts.[152]This was a case where there was reliance on both an actual and hypothetical comparator. Whilst the Tribunal paid due deference to the respondent’s expertise in safeguarding, it recorded its view that the decision to dismiss appeared somewhat harsh. This was particularly so, taking into account the potential mitigation including the pressure on the claimant between the time when she received the disclosure and she passed it on.[153]The Tribunal considered the respondent’s case on the without prejudice save as to costs correspondence. The Tribunal accepted the claimant’s submission that there is nothing unusual in costs warning letters. It is, in the experience of this Tribunal, unremarkable litigation practice.[154]The question for the Tribunal was whether it was unreasonable for the claimant to refuse the settlement offer. This was an agreement as to quantum - that the claimant would be paid £2,000. However, there was a disagreement about the terms of the reference and whether it should refer to what the respondent called the claimant’s safeguarding failures. In the view of the tribunal, this indicated that the claimant was not cynically seeking to extract money from the respondent by way of a so-called “nuisance settlement”. It indicated that the claimant genuinely wanted to clear her name.[155]There is often more than one reasonable approach to be taken in a situation and in the view of the Tribunal, it could not be said that the claimant’s refusal was unreasonable.[156]Accordingly, Tribunal found that its power to make an order for costs under Rule 76 was not triggered. However, for the avoidance of doubt and to assist the parties, if the power to make a costs order was triggered, the tribunal would not have exercised its discretion for the same reasons as set out above.[157]Accordingly, there was no need to go on to consider the amount of costs.