Miss S Moody v London Borough of Southwark: 2302190/2023

EMPLOYMENT TRIBUNALS

Case No 2302190/2023

Between

Miss S MoodyClaimant

London Borough of SouthwarkRespondent

Before

Employment Judge Fredericks-Bowyer

In person for claimant

Mr S Wyeth (instructed by Counsel) for respondent

Date 21 August 2025

REASONS

[1]This is the respondent’s application for relief from sanction following the response being dismissed for non-compliance with an unless order. After hearing the application, I set aside the unless order. The response is reinstated. The claim continues defended.

[2]I gave oral judgment at the hearing. These written reasons are produced at the claimant’s request. Procedural history 1 of 7

[3]The claim was issued on 20 May 2023. The claimant worked as a higher level teaching assistant from 9 November 2013 to 16 December 2022. She advances claims of unfair dismissal, race discrimination, race harassment and victimisation.

[4]The claims were discussed and clarified at a hearing before Employment Judge Craft on 5 March 2024. The question about whether or not the respondent would file an amended response is resolved at paragraph 8 of the resultant case management orders:- “The respondent is permitted to serve an amended response, so as to arrive with the Tribunal and the claimant on or before 21 May 2024, if so advised. The amended response will set out the respondent’s factual assertions in connection with the claims as understood as a result of the discussions at this hearing and preparation of the Scott Schedule.”

[5]This is not an instruction to file an amended response. It is permission to do so ‘if so advised’, with that permission time limited. The respondent would be unable to amend its response until it understood the claimant’s claims, and to that end the claimant was ordered to confirm and serve a Scott Schedule by 9 April 2024.

[6]The claimant did not serve the Scott Schedule until 1 May 2024, some three weeks after the deadline required. The respondent had not raised delay or non-compliance with the Tribunal. The claimant also lodged an application to amend the claim which is subject to separate determination outside of this hearing.

[7]On 20 May 2024, the respondent’s solicitors made an application to the Tribunal to extend the time to file a response. The e-mail says, relevantly (my underline for emphasis):- “We write on behalf of the respondent and respectfully request an extension of 14 days to file an amended response following receival [sic] of the Scott Schedule which had been provided by the claimant later than anticipated. Upon receival [sic] of the Scott Schedule, we have had the chance to review and understand the allegations cited are lengthy and involve many members of staff, some of which are no longer employed by the respondent. This will lead to difficulties and delays for us when trying to obtain comments and confirming our client’s instructions. We would be grateful for an extension of 14 days to allow us to provide a full and effective response…”

[8]There is, therefore, a change in circumstances compared to those before Judge Craft. The respondent plainly ‘is so advised’ at this point; there is an amended response intended and the respondent’s solicitor is applying to the Tribunal for an extension of time to file a specific document without caveat attached.

[9]On 17 June 2024, Employment Judge Abbot gave the following response and directions:- 2 of 7 “In the interest of justice, extension of time for the amended response is granted to 25 June 2024. The respondent is to provide its comments on the claimant’s application to amend by 7 July 2024…”

[10]The respondent’s solicitors have submitted that this correspondence was not received by them. This was said in their original response to the unless order leading to the response being dismissed. It was then accepted that it was received, but submitted that this did not contain an order to do anything. In the hearing, Mr Wyeth accepted that the correspondence did, at least, make an order for comments to be provided on the application to amend the claim. Mr Wyeth submitted that the part about the extension of time only extended the time to file a response ‘if so advised’, and so there is permission given rather than a direction to do something.

[11]There is then a gap in the bundle submitted by the respondent for this hearing, and correspondence is missing which is part of the important procedural history:- 11.1. On 26 June 2024, the claimant’s representative e-mailed the Tribunal to say that the amended response has not been received and there has been no contact or explanation about the delay. The respondent’s solicitor was copied into that e-mail. There was no response from the solicitor. 11.2. On 30 June 2024, the claimant provided information about the remedy being sought, and the e-mail sets out that information has been requested from the respondent but not received. The respondent’s solicitor was copied into that e-mail. There was no response from the solicitor.

[12]The respondent’s solicitor made no other contact with the Tribunal to explain any delay, to confirm that there would not be an amended response after all, or apply for any extension.

[13]The respondent did not comply with the direction to provide comments on the application to amend the claim by 7 July 2024. It did not, after the deadline, make any contact with the Tribunal.

[14]On 22 July 2024, the claimant made an application for an unless order. The covering e-mail was copied to the respondent’s solicitor. There was no response to the solicitor.

[15]The application was referred to me on the papers. In my view, the respondent had not filed an amended response, despite having decided to do so, by 25 June 2024. It had not filed comments on the application to amend the claim as it had been directed. I could see that the respondent’s solicitor had been copied into several emails, including one complaining that the respondent had not complied with a direction, and an application for an unless order. None of those e-mails had been replied to. There was no amended response, and no clear position on the application to amend the claim.

[16]I made an unless order, which said, relevantly:- 3 of 7 “There is a final hearing listed to be heard in 6 months’ time. The parties are still not clear on the scope of the claim and clarity must be achieved urgently. The respondent has not given any reason for the failure to comply, and it appears from the Tribunal file that the response may no longer be being actively pursued. In the circumstances, it is appropriate to make an unless order under Rule 38 Employment Tribunal Rules of Procedure 2013. I make the following order – Unless by 4:00pm on Wednesday 14 August 2024, the respondent provides(1) its amended response,

(2) its comments on the claimant’s application to amend the claim, and

(3) an explanation for the non-compliance with a Tribunal order, the claim shall be dismissed without further order…”.

[17]Unfortunately, that unless order was not sent to the parties until the afternoon of Wednesday 14 August 2024 and, despite the delay in it being sent, no-one sought to amend the deadline before it was sent. The upshot was that the respondent only had some 3 hours to comply with the three-part order. Even though, in my view,(1) and

(2) should have been completed several weeks before the unless order was made, it clearly was not my intention to effectively deprive the respondent of the ability to comply with the unless order.

[18]The respondent did not comply with the unless order. The response was automatically dismissed. The respondent’s solicitor then made content to object to the order being made. Only then was I made aware of the delay in sending the order out. The respondent was required to make this application to set aside the unless order, and the application was heard in the hearing which had already been listed.

[19]Confirmation of the application of sanction was sent to the parties on 2 September 2024. The application to set aside the unless order and for relief from sanction was sent by the respondent’s solicitors on 13 September 2024. The application is in time.

[20]In this hearing, I was assured that the respondent had not abandoned the defence to the claim. Even though it may have appeared so, I was told (and it was not disputed) that the respondent had been engaging throughout the period with the claimant and her claim on a without prejudice basis.

Relevant law

[21]The test for setting aside an unless order and relief from sanction are set out at Rule 38 (2) Employment Tribunal Rules of Procedure 2013. It says – “A party whose claim or response has been dismissed, in whole or in part, as a result of [an unless] order may apply to the Tribunal in writing, within 14 days of the date that the notice was sent, to have the order set aside on the basis that it is in the interests of justice to do so. Unless the application includes a request for a hearing, the Tribunal may determine it on the basis of written representations.” 4 of 7

[22]In Wakeman v Boys and Maughan Solicitors and another

[2024] EAT 39

, HHJ James Tayler provides a comprehensive summary of the law to be applied when considering an application under rule 38(2). The saliant principles for the purposes of this particular application, are:- 22.1. The decision should consider the overriding objective, emphasising proportionality of decisions made and seeking to avoid unnecessary formality. 22.2. The factors to be weighed when considering the interests of justice generally include [Minnoch and others v Interserve FM Ltd

[2023] EAT 35

– 22.2.1. The reason for the default – in particular whether it was deliberate, 22.2.2. The seriousness of the default, 22.2.3. Prejudice to the other party, 22.2.4. Whether a fair trial remains possible. 22.3. Unless orders are an important and serious case management tool which should not be easily set aside (Thind v Salveson Logistics Ltd

UKEAT/487/09/DA

). Relief from sanction

[23]The simple fact, with this application, is that the respondent had no realistic possibility of complying with the unless order once it was made due to the delay introduced by the late sending of the unless order. The unless order operated, completely unintentionally, as a strike out in all but name – and an effective strike out of which the respondent had no warning and no opportunity to address (as it would if a strike out warning was given). The nature of the sanction meant that it was applied before anyone was alerted to that very real and damaging unfairness.

[24]In my judgment, the unless order should be set aside for that reason alone. It is not in the interests of justice or in accordance with the overriding objective to subject the respondent to the harshest sanction. This is plainly the sort of scenario where the order can be set aside without undermining the seriousness of the unless order regime, as is warned by Thind.

[25]Considering the other generally relevant factors for completeness, I consider – 25.1. The respondent’s default was not deliberate, wither in terms of failing to comply with the unless order or in the events which led to the making of the order. Mr Wyeth described the respondent’s silence in respect of the claim and failure to file an amended response as ‘discourteous’. In my view, the conduct is some way beyond that. There has been a series of instances where best practice would indicate making contact with the Tribunal. The respondent’s solicitor told the Tribunal that something would be done and requested a deadline. That deadline was not met. An explanation was only provided some two months later after the response had been dismissed. Managing in a case in that way is always 5 of 7 going to risk a serious adverse decision because it led me to conclude that the defence may have been abandoned. The respondent solicitor’s conduct towards the Tribunal mirrored exactly that which an Employment Judge would see where there had been such an abandonment. That said, I accept that the default was a mistake caused by a combination of staff annual leave and other work pressures, including dealing with this claim on a without prejudice basis. 25.2. The default which led to the response being dismissed was not serious of the kind which would make this end result proportionate. It is important for clarity in the parties’ position to be achieved and it is important for the parties to be ready for the final hearing. However, an amended response was provided by the time of this hearing and further finalisation of the response may need to be done in any event because the claimant then chose to apply to amend her claim. The respondent’s conduct has not, in reality, alone delayed the setting of the issues in the claim because the application to amend the claim has contributed to that. 25.3. I accept that the claimant is prejudiced by a decision to set aside the unless order because, if it is not set aside, she is entitled to only have remedy determined without having to prove her case in a properly contested hearing. I accept that having to contest this claim where it is defended is likely to be more difficult with a significant impact upon her. This is, though, no different to what would have had to happen if the unless order was capable of being complied with (and I am satisfied that the respondent would have complied with the order if it had been able to do so). 25.4. A fair trial remains possible, and remains possible within the listed window. The issues can be clarified at the next hearing and the claim case managed to timetable it appropriately to final hearing. The conduct of the respondent does not undermine inherent fairness in the hearing or the process.

[26]Considering, in the round, what is in the interests of justice and the balance of overall prejudice to one party compared to the other, it is overwhelmingly the case that it is in the interests of justice to set aside the unless order. Even leaving aside the perverse effect of the order introduced by its delayed sending, on balance, I consider that the order should be set aside having analysed the effect of the sanction through the authorities outlined above.

[27]The unless order is set aside. Relief from sanction is granted. The claim continues and will be case managed to trial at the next hearing.

Background

[1]This preliminary hearing was listed to deal with the respondent’s application to strike out the claimant’s claims on the grounds of no reasonable prospects of success and time limit points and the claimant’s application to amend the claim and for any consequential case management.

[2]The respondent’s position is that the alleged discriminatory acts extend to a time period of over 7 years, and it is argued they are out of time and denied they are part of any continuing course of conduct.

[3]The claimant’s existing claims are as follows: a) Unfair Dismissal – section 98 Employment Rights Act 1996 b) Direct race discrimination – section 13 Equality Act 2010 (‘EQA’) c) Harassment relating to race -section 26 EQA d) Victimisation - section 27 EQA

[4]A complaint of indirect discrimination has previously been withdrawn by the claimant. Page 1 of 13

[5]I have a 364-page bundle for this preliminary hearing. Any references to page numbers in this decision are to page numbers in this bundle. Within the bundle the claimant has an amended particular of claim. This is at page 137- page 172 comprising some 35 pages. The allegations which are highlighted in green on these particulars of claim are new allegations the claimant seeks to add to her claim under the existing complaints (set out at paragraph 3 above). There are no new complaints being advanced. The claimant has also filed a Scott Schedule. The Scott schedule does include the new allegations also contained within the same particulars of claim. The Scott Schedule is at pages 173 - 195 of the bundle comprising some 60 pages. As there were a significant number of documents, we agreed for ease we would work from the Scott Schedule and refer to other documents as required. Whilst Mr Moody informed us an updated Scott Schedule had since been filed neither the respondent’s counsel nor I had it by the time of this hearing. I asked the claimant to email it to my clerk and we continued with the documents in the bundle given Mr Moody indicated it did not contain any material change other than giving more information and adding to the victimisation complaint. I decided we should proceed with the documents we had in front of us and Mr Moody was told he could inform us of anything else in the updated Scott Schedule at the relevant point.

[6]I informed the parties I first needed to understand the issues in the case for the existing complaints. I will then hear the amendment application, then the strike out application and then proceed with any necessary case management.

[7]The applications took a considerable about of time and as such there was no time to make or hand down a decision on the day of the hearing hence the decision being reserved.

[8]Mr Wyeth addressed me on the amendment and strike out applications together as he had some general points to make which applied to both applications and also indicated there was a tremendous amount of overlap with the respondent’s arguments in respect of both the strike out and amendment applications.

[9]I then heard from Mr Moody in respect of the applications. Parties’ submissions:

[10]Mr Wyeth reminds me there is a final hearing listed for February 2025 and the matter is listed for 5 days on 18,19 20, 21 and 25 February 2025. He argues if the amendment application is permitted the current Trial listing will be lost as the matter will require at least 10 days to determine given the number of issues the Tribunal will need to make decisions about.

[11]Mr Wyeth argues that any allegations which predate March 2022 in the existing claims should be struck out and similarly any application to amend to add allegations pre-dating February 2022 should not be admitted.

[12]He raises a number of points including there was a restructure in late 2021 at the respondent during which time the claimant was told her role was secure. Page 2 of 13 This is not disputed by the claimant. Mr Wyeth argues this comes after the allegations the claimant now seeks permission for to allow into her claim. Mr Wyeth therefore argues the claimant cannot demonstrate she has a reasonable prospect of establishing this was all part of a continuing course of conduct.

[13]Mr Wyeth also relies on the fact the claimant accepts she has had trade union representation since 2018 yet did not make any complaint in relation to the alleged course of conduct being discriminatory earlier including when she issued her claim.

[14]Mr Wyeth reminds me of the comments of LJ Underhill in Ahir v British Airways PLC

(2017) EWCA Civ 1392

and Vaughan v Modality Partnership

UKEAT/0147/20/BA

[15]The amendment application includes conduct going back to October 2015 involving employees of the respondent’s organisation who have since left. Mr Wyeth refers me to a number of allegations which he argues the claimant will not be able to establish amount to race discrimination and/or will be impossible for witnesses to give any cogent evidence about. For example, it is alleged in November 2019 Miss Melehi took away Miss Jackson from a sports trip 10 mins before departure. Another such example about the respondent being prejudiced insofar as cogency of evidence is concerned is in relation to the harassment complaint where Miss Moody alleges Ms Hillier in October 2019 became angry with the claimant when she made enquiries about the HLTA course. The respondent refers me to numerous similar examples of conduct alleged which the claimant is seeking to include as part of her amendment application which he argues severely prejudices the respondent given the witnesses will be asked to recall events going back to 2015 which by the time of the final hearing I note will be almost 10 years ago.

[16]Further Mr Wyeth argues that all the amendments being sought in respect of the harassment claim are all out of time with no explanation as to why the claimant was unable to submit them in time. Mr Wyeth argues these are not allegations where there are likely to be records or contemporaneous documents which the respondent can rely on, and they will have to call a number of witnesses who will be asked to recall the events that occurred a substantial amount of time ago.

[17]Mr Wyeth states that in relation to the strikeout application any allegations which predate February 2022 should be struck out for having no reasonable prospects of success and that I should refuse the amendment application insofar as any allegations which pre-date February 2022 are concerned. In so far as any post February 2022 allegations are concerned the respondent does not admit those allegations form part of a continuing course of conduct which led to the dismissal but accepts that evidence will need to be heard about those allegations to determine this.

[18]Mr Moody states the claimant did not bring the complaints earlier because she did not identify them as discriminatory conduct related to race until Mr Moody who is the claimant's son noticed her becoming more introverted and isolated. Mr Moody accepted the earlier incidents did not occur regularly and initially the claimant thought Ms Melehi was simply not a nice person and thought they were Page 3 of 13 isolated incidents. Whilst it is accepted by the claimant that Ms Melehi lost her job as part of the restructure in 2021 and is no longer employed by the respondent Mr Moody argues that it was this employee’s input which was used as part of the reason to dismiss the claimant. The allegations which were used to dismiss the claimant were historical. Mr Moody accepts the claimant had some legal advice at the time of issuing her ET1 although he states that it was informal and via WhatsApp groups. After the preliminary hearing before Employment Judge Craft, they sought legal advice again and made the amendment application. These allegations do not appear in the initial ET1 or particulars of claim because Mr Moody's states the advice received for the ET1 submission was that they did not need to put everything in it. He conceded that the original particulars of claim were however drafted with some legal advice, but they thought they were simply to summarise the issues.

[19]Mr Moody went on to argue the incidents are not isolated because the same key ‘players’ are involved and there is a pattern of conduct leading to the claimant’s dismissal. Some of the allegations that were brought up at the claimant’s disciplinary hearing in 2020 and appeal hearing in 2021 were allegations that went back to the incidents in 2017 which is why the claimant seeks to rely on them as part of the amendment application. Mr Moody asserts there will be documents and /or records of the disciplinary hearing in 2020 and the appeal in 2021.

[20]Mr Moody refers me to the case of Arthur v London Eastern Railway Limited

(2006) EWCA Civ 1358

section 123 EQA 2010 and the Employment Rights Act 1996. Legal Framework Amendment:

Legal Framework

[21]In the case of Selkent Bus Company Limited v Moore

[1996] ICR 836

the Employment Appeal Tribunal (“EAT”) said the Tribunal should take into account all the circumstances and should balance the injustice and hardship of allowing the amendment against the injustice and hardship of refusing it. The EAT in Selkent also set out a list of factors which are certainly relevant, and I have had regard to the following factors: a) the nature of the amendment b) the applicability of time limits c) the timing and manner of the application

[22]In the case of Vaughan v Modality Partnership

UKEAT/0147/20/BA

the EAT reminded parties and Tribunals that the core test in considering applications to amend is the balance of injustice and hardship in allowing or refusing the application.

[23]The assessment of the balance of injustice and hardship may include an examination of the merits but there is no point in allowing an amendment if it will Page 4 of 13 subsequently be struck out. That extends to cases not only which are utterly hopeless but also to ones where the proposed claim has no reasonable prospect of success. The authority for that is Gillett v Bridge 86 Limited [2017] 6 WL UK 46.

[24]In Abercrombie and others v Aga Rangemaster Ltd

[2014] ICR 209

Underhill LJ, with whom the rest of the Court agreed, said: …It is perhaps worth emphasising that head (5) of Mummery J's guidance in Selkent's case was not intended as prescribing some kind of a tick-box exercise. As he makes clear, it is simply a discussion of the kinds of factors which are likely to be relevant in striking the balance which he identifies under head (4)… “…the approach of both the Employment Appeal Tribunal and this court in considering applications to amend which arguably raise new causes of action has been to focus not on questions of formal classification but on the extent to which the new pleading is likely to involve substantially different areas of inquiry than the old: the greater the difference between the factual and legal issues raised by the new claim and the old, the less likely it is that it will be permitted. It is thus well recognized that in cases where the effect of a proposed amendment is simply to put a different legal label on facts which are already pleaded permission will normally be granted.” […] “Mummery LJ says in his guidance in Selkent Bus Co Ltd v Moore

[1996] ICR 836

that the fact that a fresh claim would have been out of time (as will generally be the case, given the short time limits applicable in employment tribunal proceedings) is a relevant factor in considering the exercise of the discretion whether to amend. That is no doubt right in principle. But its relevance depends on the circumstances. Where the new claim is wholly different from the claim originally pleaded the claimant should not, absent perhaps some very special circumstances, be permitted to circumvent the statutory time limits by introducing it by way of amendment. But where it is closely connected with the claim originally pleaded – and a fortiori in a relabelling case – justice does not require the same approach.”

[25]Having considered all the relevant factors including the nature of the amendments and the timing and manner of the application I find the balance of injustice and hardship is tipped in favour of the respondent in relation to the allegations which are likely to be impacted by the passage of time and witness recall is likely to be prejudiced. However insofar as any allegations which involve the same witnesses who will be giving evidence in any event about the remaining existing complaints and where those allegations are likely to have contemporaneous records/documents/emails and some overlap with the existing claims I do not find the balance of injustice is tipped against allowing those amendments. Further they do not involve any substantial new enquiry. No new complaints are advanced for the respondent to have to investigate. Many of the allegations concern largely the same key employees/former employees of the respondent. Whilst Mr Wyeth argues allowing the amendment will mean 10- 12 more witnesses will need to be called, I cannot see how that is right based on the nature of the allegations and the witnesses named by the claimant in Page 5 of 13 relation to those allegations. Mr Wyeth did not give me any additional names to those who appear to already be relevant to the existing complaints. The amendments being sought involve in the main witnesses the respondent will need to rely on to defend the existing allegations in any event.

[26]I have dealt with the amendments following the numbering from the Scott Schedule in the bundle from page 173 onwards. I will refer to the amendments by reference to the paragraph number in the amended Particulars of Claim (which appears in the bundle at page 137 onwards and in the Scott Schedule).

[27]Having considered the nature and timing of the amendments and the balance of hardship including the impact on the cogency of the witness evidence and what the amendments will introduce and the whether the scope of the Tribunal’s enquiry would be extended by allowing the amendments I have made the following decisions. Amendment Decision with reasons Direct race discrimination – section 13 Equality Act (‘EQA’)

[28]The amendments sought in the Scott Schedule are paragraphs: 11, 12, 17, 20,21,23, 26, 34, 38, 39, 59 (check 50)

[29]Amendment 11 - involves a key witness Ms Melehi whom the respondent will have to rely on in respect of a number of other alleged discriminatory acts and whilst there is no substantial new line of enquiry the conduct is said to have occurred in January 2016. Whilst the claimant argues it forms part of a continuing course of conduct and Ms Melehi is central to a number of her allegations of discrimination it is clear the cogency of evidence (both the claimant’s and respondent’s witnesses) will be impacted by the substantial passage of time. The amendment is refused.

[30]Amendment 12 – Involves the same witness Ms Melehi whom the respondent will have to rely on in respect of a number of other alleged discriminatory acts and therefore there is no substantial new line of enquiry. However again this is an alleged conversation which took place between the claimant and Ms Melehi in 2016. Again, the cogency of evidence will be prejudiced. This amendment is refused.

[31]Amendment 17 - again this is an alleged instruction given to her in 2019 which the claimant states is unfavourable treatment related to race. It is asking for witness recall of events in 2019 with no supporting documentary evidence. The cogency of evidence is likely to be severely prejudiced. This amendment is refused. I add it is also very unclear on what basis it is asserted the request to Page 6 of 13 take the children swimming without a qualified member of staff was less favourable treatment due to race. This amendment is refused.

[32]Amendment 20 - Miss Jackson being removed from attending a school trip. Additional witness evidence will be required from a further two other members of staff who are unlikely to recall this event over 5 years ago. No documentary evidence is likely to be available for this allegation. The balance of hardship is tipped in favour of the respondent. It is really difficult, even taking the claimant’s claim at its highest, to understand how this is purported to be unfavourable treatment because of race. This amendment is refused.

[33]Amendment 21 – the claimant states on 13 January 2020 Miss Ghezzi reported the claimant about the way she spoke to a child. The claimant states this was raised in the claimant’s meeting with Amien Cloete on 16 February 2020 and at her disciplinary meetings. There should therefore be contemporaneous documents/minutes of meetings to assist the respondent with this allegation and it does not involve a whole new enquiry given the meeting with Amien Cloete and the disciplinary are already issues in the case. This amendment is allowed

[34]Amendment 23 - the way in which Ms Amien Cloete investigated a complaint made about a comment made by another teaching assistant (Jean Parker). The complaint was made on 20 January 2020 by the claimant. Amien Cloete is the same witness as for other alleged discriminatory acts and it does not appear to involve any real additional enquiry. There will also be documents regarding the investigation into this. The amendment is allowed.

[35]Amendment 26 - change of claimant’s bubble on 2 October 2020. The claimant has emails to support this allegation, and it involves the same witness Miss Melehi who will need to give evidence about a number of other allegations. There will be no real new enquiry. The contemporaneous emails will assist the witnesses in recalling the events. The amendment is allowed.

[36]Amendment 34 - on 8 January 2020 the claimant was told to provide 1:1 support to child J. The claimant sates child J needed a male support usually and he was a child which was part of the disciplinary in 2020. The claimant states she emailed Miss Melehi and Ms Amien Cloete about this child. This allegation will not involve substantial new lines of enquiry given the child was already part of the disciplinary which is relevant to this case. The allegations involve the same witnesses and there will be emails/documentary evidence which will assist the parties. The amendment is allowed

[37]Amendment 38 – there will be an email trail and documentary evidence/meeting minutes relating to this allegation. It involves the same witnesses Ms Melehi and Ms Amien Cloete and again does not involved substantial new enquiry. The amendment is allowed.

[38]Amendment 39 - on 1 April 2021 the claimant sent an email about the Southwark Equal opportunity policy. This is something the claimant is said to Page 7 of 13 have done, and it is entirely unclear how it will succeed as an allegation of unfavourable treatment because of race. The claimant’s pleading is unclear and on the basis it cannot be properly understood (and therefore defended) I find the balance of injustice and hardship tips in favour of the respondent here. This amendment is refused.

[39]Amendment 59 - on 21 July 2023 the claimant received her P45 5 months after her employment was terminated. The claimant states in accordance with policy she should have been sent her letter 2 weeks after notification. Even taking the claim at its highest I cannot see how the claimant will establish this was less favourable treatment because of her race. Whilst there will be documentary evidence to support her contention additional witness evidence will no doubt be required to deal with this allegation which will place the current final hearing listing at risk. This amendment is refused.

[40]Amendment 50 – this allegation does not appear in the claimant’s amended particulars of claim under the direct discrimination complaint, but it does appear in the Scott Schedule under this complaint. No reasons were given for this. However, for the sake of completeness I will deal with amendment 50 under both complaints. This allegation involves Mr Newman informing the claimant during a meeting on 9 September 2022 that if the claimant did not work in Ms Kelly Roberts class it was insubordination, and she could be suspended. This involves a new witness (Mr Newman). The balance of injustice is tipped against allowing the amendment for the same reasons as set out below for Amendment 49. The amendment is refused. Harassment relating to race -section 26 EQA

[41]The amendments sought under this complaint are paragraphs: 11, 12, 17, 18, 20,21, 23, 24, 25, 27, 30, 34, 37, 38, 39,40,46, 49, 50, 56,57, 59

[42]Allegations raised in amendments 11, 12, 17, 20,21, 34, 38, 39, 59 are allegations repeated from the direct race discrimination complaint above. Insofar as those allegations are concerned, I make the same decisions in either allowing or refusing the amendments as set out above at paragraphs 29 to 40.

[43]With regard to the remaining amendments, I make the following decisions:

[44]Amendment 18 – In October 2019 Miss Hiller became angry with the claimant when she made enquiries about the HLTA course. Reading the allegation in full I take note many of the claimant’s allegations centre around Ms Ghezzi, Ms Melehi and Ms Amien Cloete. I am mindful these witnesses are likely to be called upon already by the respondent to give evidence. Miss Hillier is not seemingly involved in any other allegation and given again this amendment refers to a conversation which will not have contemporaneous documentary evidence in support it will turn on recollections of a conversation which occurred 6 years ago. It will also involve a new line of enquiry with a new witness. An additional witness will likely impact the current final hearing being able to be effective. I am not satisfied the evidence after such a passage of time will be cogent and I find the Page 8 of 13 balance of injustice and hardship is tipped in favour of the respondent. This amendment is refused.

[45]Amendment 22 – allegations made in an email from the claimant to Ms Amien Cloete on 16 January 2020. It is unclear what the claimant is relying on as the precise conduct which amounted to harassment as the sending of the email itself cannot be considered to amount to harassment given it was the claimant who sent it. She simply refers to a ‘hostile manner’ but does not specify what was said and when. This allegation does not contain sufficient particularity for it to be understood as an act of alleged harassment for the respondent to be able to respond to it and as such the balance of injustice is in favour of not permitting the amendment. The amendment is refused.

[46]Amendment 24 – on 13 February 2020 the claimant was suspended from her duties when the investigation meeting concluded. This involves Miss Amien Cloete and the investigation already in issue in the case. It does not involve any real new enquiry and is unlikely to involve any additional witnesses. There will be documentary evidence in relation to the investigation meetings and the suspension. The amendment is allowed.

[47]Amendment 25 – on 24 February 2020 the claimant was suspended from her duties. Again, there will be documentary evidence in relation to this incident and it appears this will involve the same key witnesses from the respondent. I do not consider it will involve any substantial new enquiry. The amendment is allowed.

[48]Amendment 27- on 30 April 2020 the claimant was not given the details she requested in relation to the allegations against her for her to be able to respond fully. There will be email communication in relation to this allegation. Again, it does not involve a substantial new enquiry, and the disciplinary and investigation meetings are already issues in the existing complaints. The amendment is allowed.

[49]Amendment 30 - change of claimant’s bubble on 2 October 2020. This allegation is the same as Amendment 26 (above) for the direct race discrimination complaint. The claimant has emails to support this allegation, and it involves the same witness Miss Melehi who will need to give evidence about a number of other allegations. There will be no real new enquiry. The contemporaneous emails will assist the witnesses in recalling the events. The amendment is allowed.

[50]Amendment 37 – after the claimant was injured by child J on 3 February 2021 Ms Amien Cloete completed and sent off an injury at work form without speaking to the claimant. Whilst I take note that this may be a form which may not require input from an employee when an employer is required to submit it, I do not have sufficient information about this allegation to understand it fully at this stage without context. I again take into consideration that Ms Cloete is a witness the respondent will need to rely on in respect of a number of allegations in any event, this allegation does not require substantial new enquiry and will involve Page 9 of 13 contemporaneous documents which will assist the respondent in dealing with it. The amendment is allowed.

[51]Amendment 40 – On 14 July 2021 the claimant refused to sign her appraisal due to alleged discriminatory language used by Ms Amien Cloete. The language referred to will be able to be referred to in contemporaneous documents and again the key witness is one whom the respondent will already be relying on. I do not find this will involve any substantial new enquiry. The amendment is allowed.

[52]Amendment 46 – on 9 March 2022 the claimant was given a letter by Ms Ghezzi which was from Ms Amien Cloete dated 1 March 2022 suspending the claimant from all her HLTA duties. Again this allegation involves the same key witnesses, does not add much by way of new enquiry and will have contemporaneous documentary evidence which the respondent can rely on. The amendment is allowed.

[53]Amendment 49 – on 7 September 2022 the claimant was asked to work with Mrs Marie Kelly Roberts whilst under suspension which the claimant expressed her discomfort with as it was Mrs Kelly Roberts who had reported the claimant to management on 3 March 2022. This allegation involves a Mr Thomas Newman a new witness. Whilst he is referred to in another allegation it is as a comparator and his witness evidence appears unlikely to be needed in respect of the existing allegations. An additional witness will most certainly impact the effectiveness of the current final hearing listing. The balance of injustice and hardship is tipped against allowing the amendment. The amendment is refused.

[54]Amendment 50 – this allegation follows from Amendment 49 above and involves Mr Newman informing the claimant during a meeting on 9 September 2022 that if the claimant did not wok in Ms Kelly Roberts class she could be suspended. Again, this involves a new witness (Mr Newman). The balance of injustice is tipped against allowing the amendment for the same reasons as set out above for Amendment 49. The amendment is refused.

[55]Amendment 56 – the respondent delayed significantly in February 2023 in response to the claimant and her appeal. The appeal is already an issue in the case, and this will not add any substantial new enquiry. The respondent ought to have contemporaneous documents in respect of the appeal. The amendment is allowed.

[56]Amendment 57 - on 23 March 2023 the school HR emailed the claimant to inform her they would not be clearing her employment file and the matter progressed to the next stage of the Appeal. This will potentially involve additional witness evidence to the key witnesses who are involved in most of the allegations. There is insufficient clarity as to how this conduct is related to the claimant’s race. I am mindful of prospects of success of this particular allegation insofar as establishing it had the proscribed effect and take note of the wider claims the claimant brings and as such the balance of hardship is against allowing the amendment. The amendment is refused. Page 10 of 13 Victimisation - section 27 EQA

[57]Allegations 56,57 and 59 are new in respect of the Victimisation complaints and subject to the amendment application.

[58]Amendments 56 57 and 59 are allegations which are repeated for the complaints of direct discrimination and harassment. As such my decisions as set out above apply for these amendments. Only amendment 56 is permitted to proceed.

[59]For the sake of clarification these amendments are dealt with at paragraphs 55,56 and 39 and above.

[60]In relation to the amendments not allowed I have also taken into consideration the timing and nature of the application and the fact no good explanation is advanced for not having included them at the time of issuing the claimant’s ET1. The claimant has had the benefit of trade union representation and sought legal advice albeit it appears informally. The claimant was sufficiently aware to include many of the allegations which form part of the already pleaded complaints. I also take into consideration the overriding objective and the fact that inevitably granting some of the amendments will result in the final hearing being vacated. It is likely to be approximately a further year if not longer before a final hearing will be re- listed. As such I am mindful this could prejudice both parties receiving a fair final hearing given the inevitable impact on witness memories that such a passage of time will have (this includes the claimant) when the current listing is already some years from many of the events complained of. Legal Framework Strike out:

[61]Under Rule 37 of the Employment Tribunal Rules of Procedure 2013 at any stage of the proceedings either on its own initiative or on the application of a party a tribunal may strike out all or part of a claim or response on a number of grounds including that it has no reasonable prospects of success.

[62]It is clear pursuant to case law that I am expected to take the claimant’s case at its highest.

[63]In Ezsias v North Glamorgan NHS Trust

2007 ICR 1126

, the Court of Appeal held that the same or a similar approach should generally inform protected disclosure cases, which have much in common with discrimination cases, in that they involve an investigation into why an employer took a particular step. The Court stressed that it will only be in an exceptional case that an application will be struck out as having no reasonable prospect of success when the central facts are in dispute. An example might be where the facts sought to be established by the claimant are totally and inexplicably inconsistent with the undisputed contemporaneous documentation. Page 11 of 13

[64]In Ahir v British Airways PLC

2017 EWCA Civ 1392

, the Court of Appeal asserted that Tribunals should not be deterred from striking out even discrimination claims that involve disputes of fact if they are entirely satisfied that there is no reasonable prospect of the facts necessary to find liability being established, provided they are keenly aware of the danger of reaching such a conclusion in circumstances where the full evidence has not been explored. The issue is not the subject matter of the claim but whether it meets the statutory test. The Court accepted that the test for strike-out on this ground with its reference in rule 37(1)(a) to ‘no reasonable prospect of success’ was lower than the test in previous versions of the strike out rule.

[65]In Cox v Adecco Group UK & Ireland and ors

2021 ICR 1307

, EAT, the Appeal Tribunal held that an Employment Tribunal had erred in striking out a litigant in person’s claim that he suffered detriment for making protected disclosures (i.e. ‘whistleblowing’) without properly identifying the issues and analysing whether there was a reasonable prospect of success. In the course of his Judgment His Honour Judge James Tayler provided guidance on how Tribunals should approach strike out application against litigants in person.

[66]Similar points were made in Malik v Birmingham City Council and anor EAT 0027/19, where Mr Justice Choudhury stated that the obligation to take the claimant’s case at its highest for the purposes of a strike out application, particularly where a litigant in person is involved, requires the Tribunal to do more than simply ask the claimant to be taken to the relevant material. The Tribunal should carefully consider the claim as pleaded and as set out in relevant supporting documentation before concluding that there is nothing of substance behind it. Decision on strike out application with reasons

[67]Mr Wyeth states that in relation to the strikeout application any allegations which predate February 2022 should be struck out for having no reasonable prospects of success. He does not go through each and every allegation and make submissions about them individually.

[68]Having taken the claimant’s claims at their highest I stand back from striking out the allegations which predate February 2022 because without hearing evidence I cannot reasonably conclude that those allegations properly fall within the test of no reasonable prospects of success. Many of the allegations involve the same key witnesses pre and post February 2022 and the claimant argues the allegations demonstrate a pattern of discriminatory conduct. In isolation I accept this may not be obvious for each allegation, but I step back from strike out without understanding the context. I have noted a gap between some of the alleged acts however I will leave the Tribunal at the final hearing to determine whether any of the allegations are out of time or form part of a continuing course of conduct. Time limits will therefore form part of the list of issues to be determined at the final hearing. Page 12 of 13 All judgments (apart from judgments under Rule 52) and any written reasons for the judgments are published, in full, online at https://www.gov.uk/employment-tribunaldecisions

FINDINGS OF FACT

[69]Mr Taper’s e-mail then criticises the guidance review in this case, stating he has never experienced someone being kept in the review process after meeting the targets set for them. I take Mr Taper to be referring to Ms Melehi’s initial intention to extend the review.

[70]Ms Amien-Cloete responded to Mr Taper on 15th November 2018 clarifying that Ms Sleat had suggested mediation, so the guidance review process had been brought to an end. Ms Amien-Cloete believed Mr Taper may have misunderstood that the guidance review had ended.

[71]I find on the balance of probabilities that Ms Melehi initially intended to extend the guidance review process, but when Mr Taper objected to this, mediation was proposed as an alternative, and that was the course of action pursued. The parties disagree as to whether Ms Sleat or Mr Taper proposed the mediation. I consider it’s more likely than not that Mr Taper, and not Ms Sleat suggested mediation. That’s what he states in his e-mail, Ms Amien-Cloete states it was Ms Sleat, but Ms Amien-Cloete was not present, so I prefer Mr Taper’s account. I also consider Mr Taper’s e-mail shows no evidence that he 1 Mr Taper doesn't seem to expressly deal with those comments anywhere in his e-mail misunderstood the position, namely he understood that the guidance review process had been brought to an end.

[72]As to the other matters raised by Mr Taper in his 8th November 2018 e-mail, Ms Amien-Cloete explained she had spoken to Ms Melehi and HR, who recalled no concerns during the meeting about how Ms Melehi treated the claimant. Ms Amien-Cloete does not appear to have spoken to the claimant about the meeting, nor taken any action regarding Mr Taper’s allegation of “inappropriate, bullying, harassment and unfair and unreasonable” treatment towards the claimant.

[73]On 1st September 2019, the respondent underwent a restructuring exercise, after which the claimant was promoted to a Higher-Level Teaching Assistant post (HLTA), and issued with an updated contract of employment on 25th September 2019.

[74]As part of her new role, the claimant enrolled on a one-year online Level 4 course, and emailed Ms Amien-Cloete and Ms Ghezzi requesting study time. Although granted some study time, it was limited and sporadic, and a request for regular study leave was refused on around 30th October 2019. Whereas the claimant notes that another teaching assistant, Ms Currier, received more study time, which was consistent. In her oral evidence, Ms Amien-Cloete explained this apparent disparity was because arranging cover for a TA like Ms Currier was easier than for a HLTA, and if there was no HLTA cover, the claimant could not be allowed study leave.

[75]There is no basis to dispute Ms Amien-Cloete’s explanation that due to their different roles, it was not practical to allow the claimant the same amount of study time as Ms Currier was given. I also consider it relevant that in her evidence, Ms Amien-Cloete explained Ms Currier’s course was self-funded, and she later worked part time rather than relying on study leave. This further explains the respondent’s position, as it was funding the claimant’s study, thus a different approach to the claimant’s study leave is justified. Events in 2020 and 2021

[76]On 10th January 2020, Mr Komeh, the respondent’s former safeguarding and investigation officer, was dealing with Child J, who was displaying challenging and intimidating behaviour. Mr Komeh’s account about this states: Just after the bell went I asked Miss Moody if she could get Miss Sahin for me, to which Miss Moody informed me, that she couldn't with an angry tone as she was about to go on her lunch break. I then reiterated to Miss Moody that it was a matter of urgency, and that I needed her to get miss Sahin for me. Miss Moody then proceed to call Miss Mardling and ask if she could go and get Miss Sahin as she was going on her lunch break. Miss Mardling agreed to it, however she didn't go to get Miss Sahin.

[77]The claimant’s account was that she initially agreed to get Ms Sahin, then remembered she was due to go on her lunch break which she explained to Mr Komeh, who repeated his request that the claimant gets Ms Sahin. The claimant called Ms Mardling who was nearby, and asked Ms Mardling to get Ms Sahin instead. Ms Mardling agreed to, but didn’t do so.

[78]The claimant subsequently explained that when Mr Komeh asked for her assistance, in her capacity as a first aider, she was also trying to find a child who had hit their head.

[79]Ms Amien-Cloete deals with this in her witness statement as follows: On 10 January 2020, I received a statement from Mr. James Komeh (Safeguarding & Intervention Officer) regarding the claimant. It is noted that Mister Comer is also an individual from a BAME background. Mr Komeh stated that the claimant had failed to assist him with an incident involving a child (Child J) with behavioural difficulties. The claimant had instead informed Mr coma that she was going on her lunch break and could not assist, asking Miss Mardling to go instead [187-188].

[80]Ms Amien-Cloete’s statement does not refer to the claimant’s explanation that she was also trying to find out about a child with a possible head injury. Therefore, in light of the claimant’s unchallenged account, I accept her explanation that she was trying to find this other child when Mr Komeh asked her to get Ms Sahin.

[81]On 13 January 2020 while the claimant was assigned to work with a teacher, Ms Omoniyi. Ms Ghezzi walked past with her class, when she reported overhearing the claimant admonishing a child in a loud, confrontational tone. The claimant denied the allegation. She says the child was disobedient, and she denied being confrontational to him. She explained she uses the “sandwich” approach when dealing with such situations, so she when reproaching a child tries to end with something positive. Following this report, Ms Amien-Cloete initiated an investigation, stating an investigation was standard practice where there are safeguarding concerns. Ms Omoniyi was asked about the incident, she said she didn’t recall the incident but described the claimant as supportive, effective and having a good sense of humour.

[82]I prefer the claimant’s account to Ms Ghezzi’s, who acknowledges she overheard the incident, so is less likely to have been aware of the full context, for instance what the claimant was reproaching the child for. Ms Ghezzi may also have been unaware that the claimant ended this interaction with the child with something positive, which may have contextualised what Ms Ghezzi witnessed. Finally, Ms Omoniyi’s account that she recalls nothing of incident happening, and her general description of the claimant, is at odds with the behaviour Ms Ghezzi describes.

[83]On 21 January 2020, a parent complained that both her children said the claimant “always shouts,” which she felt undermined their confidence. The claimant was unsure what this referred to. Another parent emailed on 22 January 2020, criticising the claimant’s disciplinary style when the claimant covered a class over a 3-day period. The claimant responded with a detailed statement outlining her behaviour management, including using rewards, such as marbles and golden tickets, alongside sanctions, in accordance with school policy.

[84]Again, I prefer the claimant’s account relating to the complaints made on 21st and 22nd January 2020. The earlier one that the claimant “always shouts” suggests some exaggeration, and contains no specific information regarding the allegations, for instance when and where the claimant is alleged to be shouting. This makes it difficult for the claimant to respond to in any greater detail than her general denial. Taking account of the likely exaggeration and vagueness of the allegations, I prefer the claimant’s account.

[85]Similarly, the 22nd January 2020 complaint provides no detail about what the claimant has done or not done. That is in contrast to the claimant’s detailed account of how she used rewards and sanctions in accordance with the school’s behaviour management policy. Absent any specific examples of the claimant’s inappropriate disciplinary style, I prefer the claimant’s evidence that she used appropriate behaviour management methods.

[86]On 23 January 2020, the claimant reported that Ms Parker, a former teaching assistant, made an inappropriate comment about the length of the claimant’s skirt. Ms Amien-Cloete assured the claimant she would investigate this and feedback to her. There is no documentation in the hearing bundle regarding any follow up, and Ms Amien-Cloete does not deal with it in her witness statement. However, it is common ground that Ms Amien-Cloete asked Ms Parker to provide a statement in response to the claimant’s complaint (allowing her 3 days to do so), in which Ms Parker said her comment was intended to be a joke. It is also common ground that Ms Parker apologised to

[87]On 29 January 2020, another parent complained that her son, during an emotional meltdown, repeated the phrase “don’t you dare disrespect me”. The parent implies her son learnt this phrase from the claimant, who the parent has allegedly heard using the phrase. There is no reason to dispute the parent’s account that she has heard the claimant using this phrase, which, on the face of it, seems to be a somewhat strict rebuke. However, without knowing the context of the claimant using the phrase, it’s difficult to conclude that she did so inappropriately.

[88]In a letter dated 31 January 2020, Ms Amien-Cloete invited the claimant to an investigatory meeting scheduled for 13 February 2020. The letter does not cite any specific policies which the claimant has breached, although in her witness statement for these proceedings Ms Amien-Cloete claims the respondent’s safeguarding policy and code of conduct were relevant. However, the only document enclosed with the letter of 31st January 2020 was the respondent’s disciplinary policy.

[89]Paragraph 2.1 of the respondent’s Disciplinary Procedure states: 2.1. When disciplinary matter arise the following procedure will apply: The appropriate person under the scheme of delegation will inform the employee of the nature of the allegations in writing with as much detail as possible and at the earliest opportunity. However, where a strategy discussion is needed, or police or children's social sub scare services need to be involved, the employee should not be informed until those agencies have been consulted and have agreed what information can be disclosed.

[90]Paragraph 2.1 of the Disciplinary Procedure continues: The investigator will write to the employee and give the following information Details of the allegations (as appropriate) copies of available information A copy of the disciplinary procedure Disciplinary procedure that reflects the School Staffing Regulations 2003 Time and date of investigation meeting Right to representation at any meeting

[91]A repeated criticism made by the claimant is that the respondent often failed to follow its policies and procedures, including its disciplinary procedure, by failing to provide contemporaneous notice of allegations made against her, and failing to provide sufficient detail regarding the incidents.

[92]Ms Amien-Cloete and the claimant met, as planned, on 13th February 2020. Around 30 minutes after the meeting ended, Ms Amien-Cloete informed the claimant she was being suspended. The claimant states Ms Amien-Cloete suspended her from all duties 30 minutes after the latter spoke with Local Authority Designated Officer (“LADO”). Ms Amien-Cloete says she contacted LADO prior to the investigation meeting, and also denies the claimant was suspended from all her duties, stating she was suspended from play time and lunch time duties, and assigned alternative duties.

[93]I find that the claimant was not suspended from all her duties, it was instead that some of her duties were removed or suspended, but she was not suspended from her job. I note there is no written record of the claimant being suspended from her job, nor is a suspension referred to at either of the July or September 2020 disciplinary hearings.

[94]As to when Ms Amien-Cloete called LADO, I accept her evidence that she called them before the meeting with the claimant, and therefore did not suspend the claimant 30 minutes after calling LADO. That is because the claimant was not party to Ms Amien-Cloete’s telephone call to LADO, so Ms Amien-Cloete is best placed to confirm when she called them. Furthermore, I see no reason to reject Ms Amien-Cloete’s account that she spoke to LADO before the meeting, as she states.

[95]In the interim, Ms Lucas, the respondent’s office manager, took a report from a parent regarding a pupil referred to as Child O. The parent reported Child O returned from school distressed and crying because in the playground on 12th February 2020 the claimant had shouted at him. It’s said Child O used the words “Violent & Aggressive” to describe the claimant’s behaviour.

[96]The claimant’s account of this incident is that Child O and another child were play fighting, she was concerned they might injure themselves, and she projected her voice to be heard over other children in the playground. The claimant says she told their class teacher Mr Longman, about what had happened, and she left it with him to deal with. She denies being violent or aggressive.

[97]On balance, I prefer the claimant’s account, which is direct evidence of what took place, whereas the respondent relies on an account based on multiple hearsay. The claimant accepts she projected her voice, but given her concerns they might be injured, and that she was projecting her voice, that does not seem inappropriate, and not the violent and aggressive behaviour described. Furthermore, as the claimant reported Child O’s misbehaviour to his class teacher straightaway it lends credibility to her account that in the context of the risk of injury and a noisy playground, she behaved appropriately. Whereas if Child O was upset, Mr Longman would no doubt have seen this, or one would have expected the child to report it to him at the time.

[98]The disciplinary meeting took place, as planned, on 13th February 2020. Ms Amien-Cloete conducted the meeting, and the claimant was accompanied by Mr Taper.

[99]The record of the meeting shows Ms Amien-Cloete explained the allegations and gave the claimant an opportunity to respond to them. Ms Amien-Cloete asked: “Do you understand why the school has concerns regarding these incidents?”

[100]The claimant responds (see page 245): From my perspective I don't feel supported, I feel there is bias when it comes to me.

[101]The claimant also suggested Ms Amien-Cloete speaks to colleagues regarding her work, including Ms Omoniyi, Mr Lachlan, Yolanta and Ms Roberts.

[102]Ms Omoniyi e-mailed a statement to Ms Amien-Cloete on 1st April 2020, which stated (see page 276): When S is with me in class she is very engaged and takes part in the music sessions. She seems to enjoy the sessions and I appreciate her support and involvement in the lesson. During the directed teaching she supports my behaviour management by sitting alongside children who need support, reinforcing instructions by modelling or repeating instructions quietly. During independent work she supports a group to stay focused and on task and I have never had an issue about the way she does this.

[103]When addressing parents’ and children’s description of the claimant’s behaviour management as being fearful, intimidating or scary, Ms Omoniyi’s statement continues, that she’s aware the claimant has an edge. She refers to one incident where she describes the claimant as “addressing a year 6 class in quite a sharp/firm and intense way.”

[104]However, my understanding of the respondent’s position seems to be the latter incident would not necessarily be a disciplinary matter. For instance, when referring to a decision to deal with Ms Currier, a white teaching assistant, about whom no prior concerns had been raised (see page 930 paragraph 8.2.13): Ms Amien-Cloete explained the decision behind this was that when issues were raised around Ms Moody’s tone of voice, it is directed at one child. Ms Currier was deemed to have raised her voice at a group in the playground where she tried to get attention of a class to follow instruction.

[105]Although noting no prior complaints had been made against Ms Currier, Ms Amien-Cloete’s point is that it is the claimant’s one-to-one interactions with children that the respondent considers problematic.

[106]On 30th April 2020 Ms Amien-Cloete requested the claimant provide further information for the investigation by completing a questionnaire. One question (see page 285) asks in general terms why the claimant thinks some children describe her making them feel worried, scared and anxious. The claimant emailed the completed questionnaire on 7th May 2020, stating she could not respond to that allegation without specific information. Her covering e-mail to Ms Amien-Cloete also states: I quite often feel that the investigations are biassed against me. I feel that it has grown out of control and there is a clear agenda to encourage me to leave or be fired from my employment. The lack of clarity of the alleged claims about my behaviour, the reports being believed before my opportunity to testify and the constantly shifting narratives of the former corroborates this. Personal attacks (which I place down to a particular facet of profiling, which Mr taper advises me, that this is always the case when people are being interviewed in isolation with direct, focused questions about someone and it comes down to personality or whether someone likes you or not. Furthermore, witnesses not understanding the consequences of what they say), judgments made about me and encouraged to enforce a mob culture that has been extremely oppressive, upsetting and unjust I feel that it has become a sustained campaign to ensure that my character and professional career is thoroughly desecrated. As previously stated, misunderstandings, complaints and so on happen from time to time, especially in an education setting. However, equal opportunities is not exercised across the board in terms of how reports are dealt with, investigated, conducted, and resolved. I would like the oppressive regime to stop and fairness to take its place. I have gone above and beyond the call of duty for Dog Kennel Hill School and I have treated its values with respect and diligence. I want to continue my job in a safe environment and put all this behind me. I've done nothing wrong and my intent is always for the best.

[107]There is no record of the respondent addressing the concerns set out in the claimant’s e-mail, nor providing the specific information she requested regarding the questionnaire.

[108]The next correspondence is a letter from Ms Amien-Cloete dated 12th May 2020 informing the claimant that as a result of the investigation the respondent’s disciplinary process will be followed. In reaching that decision, Ms Amien-Cloete states that she took into account that there have been similar allegations regarding the claimant from different sources since her employment began.

[109]As part of the disciplinary process, an investigation report dated 17th June 2020 was prepared, and sent to the claimant. It detailed various allegations covering the period 21st June 2017 to 13th February 2020. As part of the investigation, the claimant was asked to provide her account of the more recent complaints from 10th January 2020 to 13th February 2020. However, the investigation report confirms that while earlier allegations on the claimant’s file were reviewed (see page 293), she was not asked to address these as part of the investigation.

[110]The disciplinary hearing was held on 13th July 2020 and 21st September 2020.

[111]The matters considered by the disciplinary panel were as follows: Allegation 1: Complaints from multiple sources over time suggest the claimant’s behaviour did not comply with school policies. Witnesses, parents, and children consistently described inappropriate conduct, making it unlikely these accounts were mistaken or dishonest. Allegation 2: On balance, the claimant appeared to behave unprofessionally with certain colleagues. Multiple sources, including new and long-standing staff, described conduct inconsistent with the school’s code of conduct.

[112]The outcome of the disciplinary hearing was notified to the claimant on 29th September 2020. Allegation 1 was upheld; the panel concluded that the weight of the allegations, particularly those made by or supported by teachers, established the misconduct alleged. Allegation 2 was dismissed. The claimant received a Stage 2 written warning effective for nine months.

[113]The claimant appealed against the outcome of the disciplinary hearing.

[114]The minutes of the disciplinary hearings show the claimant and Mr Taper raised some procedural issues. The issues they raised are dealt with by a questionnaire. The claimant completed the relevant sections of the questionnaire providing examples of incidents where no details had been provided to her. These related to Child E and Child M. She also stated in the questionnaire that she requested two colleagues be interviewed for the disciplinary, but they were not. She cites ACAS documentation stating employees should be informed of the allegations and the evidence against them, complaining a number of statements from staff and children were not in the disciplinary bundle. The respondent addressed these criticisms (see pages 374 to 386), acknowledging that sometimes the claimant may not have been notified regarding complaints (see page 377), but other allegations would not have been notified to her until after investigations are completed, and the Panel was unaware of her proposing witnesses who had not been interviewed.

[115]Following the disciplinary hearing, the claimant resumed HLTA duties and was reassigned from a Key Stage 1 to a Key Stage 2 COVID bubble. The claimant describes the latter as a group of children with more challenging behaviour. The respondent states that as older children, they were a more appropriate age group for the claimant to work with.

[116]The claimant expressed concern about swapping her COVID bubble, citing increased COVID-19 risk as a BAME individual. Ms Amien-Cloete responded by stating an updated risk assessment was appropriate, and sought to provide reassurance that the claimant could propose further measures to safeguard her health.

[117]In her oral and written evidence, Ms Amien-Cloete also explains that with fewer HLTA, all HLTAs were required to mix bubbles to maximise staff resources, and this influenced the decisions made, and that all appropriate COVID-19 measures were in place.

[118]The claimant’s 2020/2021 appraisal began in October 2020. Ms AmienCloete set the claimant’s targets, one of which included to (see page 349 of the bundle): Display positive body language (relaxed shoulders, soft facial expressions and use of eyes, position your body facing the individual you are speaking to …

[119]The 2020/2021 appraisal is periodically reviewed and updated during the school year.

[120]In November 2020, the claimant appealed against the outcome of the September 2020 disciplinary hearing, alleging breaches of the Equalities Policy and failure to address discriminatory behaviour under the Respect at Work policy.

[121]On 3rd December 2020 the claimant was covering a class when a child went missing from the class line. The claimant later saw the child in the school’s reception area, and was informed by the school administrator that the child had been brought to the reception by Ms Currier. The claimant asked Ms Currier to let her know in future if she took a child away from the class. The claimant states Ms Currier reacted aggressively towards her. The claimant emailed Ms Amien-Cloete about this incident, who consequently spoke to Ms Currier and to the assistant head teacher, Mr Newman about this. Ms AmienCloete accepted their account that Ms Currier had not taken the child away from the class line. Instead, Ms Amien-Cloete accepted Ms Currier’s account that she found the child wandering, and took the child to the school office to try to find out where the child should be. Ms Amien-Cloete was aware that the claimant had not seen Ms Currier taking the child from the line, and as Ms Currier denied doing so, and Mr Newman supported that account, she accepted what they said.

[122]Given that the claimant had not seen Ms Currier remove the child from the line, and Mr Newman supported Ms Currier’s account that she had not done so, I find it was entirely open to Ms Amien-Cloete to accept Ms Currier’s account. Therefore, I also find Ms Amien-Cloete correctly did not consider Ms Currier had breached safeguarding.

[123]The claimant and Ms Currier had mediation following this incident.

[124]The claimant refers to Ms Amien-Cloete’s comment in her 2020/2021 appraisal regarding the 3rd December 2020 incident, which states: “I will advise SM continues to work on this area as there has been recent staff related issue that was addressed with both parties through mediation.”

[125]The claimant regards this comment as indicating Ms Amien-Cloete considered the claimant was at fault for the 3rd December 2020 incident. I find the comment to be somewhat vague. I do not find it contains any express criticism of the claimant’s conduct on 3rd December 2020. Ms Amien-Cloete advises the claimant continues to work on this area, but does not say that the 3rd December 2020 incident reflects the claimant is failing to do so.

[126]On 8th January 2021 the claimant’s unchallenged evidence is that Ms Melehi ordered her to provide 1:1 support to Child J, who is said to have behavioural difficulties, including being prone to violent outbursts. He was the child Mr Komeh had sought the claimant’s assistance with on 10th January 2020 (see paragraph 76 above), which had resulted in the disciplinary, for which the claimant’s appeal at that time, was still pending. When the claimant expressed concern about providing him with support, Ms Melehi suggested the claimant raise these concerns with Ms Amien-Cloete.

[127]Ms Amien-Cloete and the claimant exchanged e-mails about the claimant providing 1:1 support to Child J. In an e-mail sent by Ms Amien-Cloete on 9th January 2021 she explained that she was asking the claimant to provide 1:1 support to Child J because the claimant had expressed concerns about the COVID related risk of working in a class with more than two adults and children. Providing 1:1 support would Child J meant the claimant would not be working in such an environment. Ms Amien-Cloete’s view regarding the claimant’s outstanding disciplinary appeal was that it did not directly involve Child J: the disciplinary matter related to Mr Komeh’s request for help with Child J.

[128]During this exchange, Ms Amien-Cloete made it clear to the claimant that she was not ordering her to work with Child J, but was making, what she considered to be a reasonable request. Therefore, I consider Ms AmienCloete did not state she would consider it insubordination if the claimant refused to support Child J as requested.

[129]The claimant’s appeal against the disciplinary panel’s decision was on 15th January 2021, and by a decision letter dated 21st January 2021, the disciplinary panel’s decision was upheld.

[130]On 1st February 2021 Child J injured the claimant. The claimant completed the relevant section of an accident at work form on 2nd February 2021. Ms Amien-Cloete completed part 2 of the same accident at work form, and sent it off without first speaking with the claimant. Subsequently, on 4th February 2021, the claimant and Ms Amien-Cloete were in a meeting. The claimant was experiencing foot pain resulting from the injury Child J had inflicted. To try to ease the pain, the claimant was tapping her foot, and seemingly not making eye contact, which displeased Ms Amien-Cloete who told the claimant she was being rude. The claimant states her reaction to the pain in her foot was included in her appraisal as a target to work on. Ms Amien-Cloete says she does not recall whether that was the case, and states the claimant’s targets were general and regarding communicating sensitively with children.

[131]The targets referred to were those set in the review meeting held on 14th July 2021, dealt with at paragraphs 138 to 140 below.

[132]On March 16, 2021, the respondent received an email from a parent raising concerns regarding the claimant, which stated: And the other matter is Ms Moody. Twice in six days XX has come home quite upset by how she's treated other members of the class. From what he has told me it sounds like she is sarcastic with the children, telling them where the door is if they don't like her class, not listening to them when they ask legitimate questions and belittling them in front of their classmates. This really isn't how a member of staff should ever be acting, but especially not when the well-being of the children is uppermost in everyone's minds. I feel she could show quite a bit more empathy for the children and an ambition to make learning fun thanks comment was that “the bad thing is she comes in for all the fun stuff when Ms Sketchley's on PPA time, and it is no fun at all.”

[133]In light of the above complaint, the respondent conducted interviews with 18 pupils in Ms Sketchley’s class. They were asked how they felt about the claimant. Their responses about the claimant range from her “being fun” and “nice to have as a teacher for a bit” to other pupils who report feeling either “A little scared” or “very scared”. The majority of responses fall into the latter category, some of those responses recognise that she is strict, although at least one pupil described this as “harsh”. Most of the negative comments refer to contexts where a child has misbehaved, although some say the claimant becomes angry for minor transgressions. For instance, when asked what the claimant does when a child misbehaves, they stated: “She normally gets very mad. If someone does a little thing like have blue tack, she gets very mad and angry.”

[134]In March 2021 Child J’s parent reported their child being upset by comments the claimant made in class directed at other children. For instance, telling them where the door was if they didn’t like her class, or belittling them.

[135]In light of the responses from Ms Sketchley’s class, and Child J’s complaints, the respondent initiated a fact-finding, which was notified to the claimant by a letter dated 26th April 2021. Because the claimant had expressed concerns about Ms Amien-Cloete’s impartiality, the fact-find was conducted by Ms Williams, a head teacher from another school. In her witness statement Ms Amien-Cloete states (paragraph 86): “I had no prior relationship with Miss Williams and note she is also of BAME origin.”

[136]The claimant maintains that Ms Amien-Cloete and Miss Williams were friends, however, I prefer Ms Amien-Cloete’s evidence on this issue. She is best placed to provide evidence on whether Miss Williams is her friend, and I see no grounds to disbelieve her evidence that they are not friends.

[137]As a further consequence of the responses from Ms Sketchley’s class, Ms Amien-Cloete also enrolled the claimant on a 5-week behaviour management course to support her.

[138]Ms Amien-Cloete conducted a guidance review meeting with the claimant on 21st June 2021, and an end of year review on 14th July 2021. In a letter dated 16th July 2021 Ms Amien-Cloete dealt with various matters, including both of the above meetings.

[139]Firstly, Ms Amien-Cloete discussed the claimant’s demeanour in the meeting on 4th February 2021 following her being injured by Child J (see paragraph 130 above).

[140]Ms Amien-Cloete writes (see page 456): I explained that in the meeting regarding the one: one child incident, I was trying to ascertain the events in order to provide support. Miss Melehi and I shared the plan and as I recall in that meeting I was trying to give you feedback as you provided no eye contact to me and I felt you were not engaging with the meeting with me. I reiterated that I wish to have a good working relationship with you and support your improvements but I needed you to engage in the meetings with me.

[141]I find Ms Amien-Cloete’s comments related to the claimant’s communication style generally, because the claimant allegedly not making eye contact is a matter that Ms Amien-Cloete has raised on other occasions. Therefore, while the example Ms Amien-Cloete referred to on that particular occasion was when the claimant was in pain, I don’t consider she was commenting on the claimant’s reaction to the pain she was in.

[142]In the 16th July 2021 letter, Ms Amien-Cloete also dealt with various aspects of the claimant’s 2020/2021 appraisal. The claimant had updated the In October 2020's meeting for this appraisal, I was told that the targets set were “opinions based on the disciplinary hearing” that were held in September 2020. With that, I do not agree with these discriminatory stereotypical views of me as a black woman of it size, painting me as the “aggressive, intimidating, angry black woman” trope... For example, I allegedly need to be more mindful of not “towering over children” (I'm 5’3 and there are members of staff a lot taller than me, yet I alone, it seems, allegedly “towering over children”) I do not know who made the allegation and my side of the story was never asked.

[143]The claimant evidently objected to this target in the appraisal form, and was unwilling to sign it. Referring to the claimant’s position on this, Ms AmienCloete writes: “This is the target that Sandra has been declining to engaging as she had felt that it was unfair.”

[144]Ms Amien-Cloete’s letter continues: You also mentioned that you disagreed with your appraisal targets and interpreted the wording as unhelpful. You stated that the targets were very close to being seen as scrutiny of your body. You mentioned you are much taller than children, yet are being asked to get down on their level, or that you should have a soft shoulder and soft face. I explained that although appraisal targets are not part of this meeting, they did come about as a recommendation from the governors who heard your disciplinary hearing. I clarified that the wording was not about your body, but about the body language used when communicating with children in general and what will be helpful. It is advised that teachers get down to the level of the children when they communicate with children and I also suggested you be mindful of your body language as this could create an impression you may not want to portray.

[145]Ms Amien-Cloete’s response suggests she views the claimant’s response as a failure to engage because the claimant feels the target was “unfair” and that the comments were “unhelpful”. Ms Amien-Cloete does not seem to recognise the claimant’s response is as a complaint about discrimination, despite the claimant using terms such as “discriminatory stereotypical” and “”angry black woman” trope”. Ms Amien-Cloete repeatedly refers to the references to the claimant’s body type and body language, but does not refer to the complaints about discrimination. Ms Amien-Cloete also doesn’t appear to see a connection between advising the claimant to display a soft facial expression, implying the claimant “towers” over children, and the claimant’s complaint of being stereotyped as aggressive and intimidating.

[146]Ms Amien-Cloete’s letter also refers to the claimant’s complaint that during the July 2020 disciplinary process the respondent did not comply with ACAS disciplinary guidance by failing to provide particulars of the allegations. Ms Amien-Cloete disputed the ACAS guidance had been breached. In my judgment, the claimant is correct on this point, because prior to the disciplinary hearing she was provided with details of allegations covering 10th January 2020 to 13th February 2020. However, the investigation report includes earlier allegations from 21st June 2017 to 22nd November 2019, which the claimant was not given an opportunity to address during the investigation meeting, yet these were included in the investigation report that was relied on to recommend disciplinary action. I find that is a breach of the ACAS Code of Practice.

[147]On 10 September 2021, while covering Ms Campbell’s class, the claimant reproached Child K for not following instructions. When Ms Campbell returned to the class, the claimant informed her of the incident, and Ms Campbell asked Child K to apologise to the claimant. Later, Child K told Ms Amien-Cloete the reprimand reminded her of being bullied in Year 3. Teaching assistant Sam Soobhee, who witnessed the exchange, reported witnessing no shouting from the claimant, nor any safeguarding concerns.

[148]I accept Mr Soobhee’s account of the claimant’s behaviour. There is no reason to believe he would be inaccurate or untruthful about what he witnessed, particularly because there is an obligation to report safeguarding concerns if he had witnessed any.

[149]In her witness statement the claimant describes the following incident on 15th October 2021: I was emailed by Miss Melehi that the start time for Team Teach Training day was 9:30am for the training. Miss Currier, Miss Howell and Miss Melehi were already present at the session, with the time starting at 9:00am, thus I arrived late due to Miss Melehi not informing me of the time change.

[150]Ms Amien-Cloete disputes this, stating Ms Howell and Ms Currier simply arrived early, before the claimant, it was not that the start time for the training had changed.

[151]I prefer Ms Amien-Cloete’s explanation to the claimant’s. I appreciate that Ms Amien-Cloete’s account is based on hearsay, but I find it the more likely explanation. I also take into account that the claimant does not expressly state that the training had begun when she arrived. Therefore, I conclude it was more likely that the others simply arrived before her.

[152]On 16th December 2021, the claimant was dealing with a pupil, Child D, who repeatedly failed to follow her instructions. During this incident, she removed a tangerine that Child D was holding. When she did this, Child D responded by pushing her with both his hands, causing him to lose his balance and fall to the floor, with Child D saying he hated the claimant. When Mr Newman arrived on the scene, the child stated the claimant had pushed him, which the claimant denies.

[153]Although he did not see what had happened before Child D ended up on the floor, Mr Newman was critical of how the claimant dealt with the situation. In particular, he said he would not have tried to remove the tangerine from the child’s hand. He took into account the claimant’s explanation, that she had received training that she should remove anything from a child that could be used as a weapon. But in his opinion, that advice was not applicable where the item in question is a tangerine.

[154]I find it is unlikely the claimant pushed the child. Despite the various complaints made against her, there is no suggestion that she would physically assault a child. I find it’s more likely than not that the child was annoyed that the claimant would not allow him to get his own way, and so falsely accused the claimant of pushing him. I would add, the respondent does not appear to be claiming that the claimant pushed Child D.

[155]On 21 January 2022, Year 5 pupils Child S and Child T said they were scared of the claimant due to her past shouting. When told about this, the claimant did not understand what the children were talking about, so she suggested having a meeting with them. The meeting was arranged as a restorative justice meeting on 28 January 2022, mediated by Mr Newman. He commented that both pupils had been diagnosed with autistic spectrum condition and were sensitive to noise. Mr Newman noted that during the meeting the claimant was initially defensive but became more understanding of the children’s point of view as the meeting progressed. However, Ms Amien-Cloete was disappointed at what she regarded as a failure by the claimant to reflect on the feedback both children had given, she was disappointed when both pupils subsequently reported no change in the claimant’s behaviour.

[156]It was put to the claimant during cross examination that she failed to reflect on the feedback she was periodically given. The claimant disagreed. She said that’s why she called for meetings, to understand what was said to have happened so that she can reflect. She said there is always room to grow and improve and she don’t shirk from feedback on how to do better

[157]A guidance review meeting was held on 25 January 2022 so that the claimant and Ms Amien-Cloete could discuss the recent complaints. Ms AmienCloete’s letter following that meeting acknowledged the claimant had complained of being discriminated against, but Ms Amien-Cloete said she did not understand the basis of the allegations.

[158]On around 28th January 2022 the claimant was covering a class in which the children had repeatedly complained of being called to lunch last so had a shorter lunch break, also meaning there were fewer food choices, leaving them sometimes hungry. The claimant said the children could write about how they were feeling if they wanted to, and some chose to do so.

[159]On two consecutive days, 31st January and 1st February 2022, Child M in year 1 returned home from school wet, explaining to her parent that she had been too scared in class to ask the claimant to go to the toilet. When this was raised with the claimant during the investigation meeting, she clarified that she was not teaching Child M’s class on 31st January 2022. It’s not known whether the claimant taught Child M’s class on 1st February 2022 because the respondent’s records are unclear. The claimant says she has never refused a child permission to use the toilet.

[160]I find it more likely than not that the Child M was either generally scared about asking to go to the toilet, or possibly simply had a toileting accident as children sometimes do. My reasons are that the claimant was not covering Child M’s class on 31st January 2022, so it would not have been fear of asking the claimant that stopped Child M going to the toilet. In which case, even if the claimant was covering Child M’s class on 1st February 2022, which is unclear, any fear she had about asking for the toilet does not appear to be specific to

[161]On 25th February 2022, Ms Larkin, the respondent’s administrator, e-mailed Ms Ghezzi with information provided by a parent regarding their son Child O, who is a year 3 pupil with special educational needs. The parent reported Child O had previously stated he was petrified of the claimant. It is unclear who used the term “petrified”. That is the term used in Ms Larkin’s e-mail to Ms Ghezzi, but it’s unclear whether Child O and/or the parent used that term. The parent continued that Child O had feigned an asthma attack while at school on Wednesday 23rd and Thursday 24th February 2022, so the parent questioned whether the claimant had taught him. Child O explained the claimant had not taught him, the reason he didn’t want to be at school on 24th February was because he was struggling with being taught to tell the time. He does not appear to explain why he feigned an asthma attack on 23rd February 2025.

[162]On 25th February 2022 Ms Ghezzi spoke with Child O asking whether he had “… any worries or concerns regarding adults in the school.” He said he didn’t.

[163]When Ms Ghezzi probed him further, explaining his mother said he was scared of an adult in the school, his recorded response is: “No, not scared of any adults at school.”

[164]On 28th February 2022, the respondent informed the claimant no further action would be taken regarding this matter because the child had not provided any information to support his mother’s account.

[165]On 4th March 2022, Ms Kellie-Roberts, Child O’s teacher, emailed Ms Ghezzi reporting that the previous day Child O said he didn’t like it when the claimant taught him. Ms Kellie-Roberts relayed this to Ms Ghezzi. Later that day (i.e. on 4th March 2022) Ms Ghezzi asked Child O about this conversation he had with his teacher that morning, he initially denied the conversation but later said he had spoken with Ms Kellie-Roberts about being “a bit scared” of the claimant, describing her as strict and saying “she shouts all the time.”

[166]I find Child O’s 25th February 2022 account given to Ms Ghezzi conflicts with the account he gives her on 4th March 2022. On 25th February 2022 he said that he had no worries about any adults, yet on 4th March 2022 he says he is a bit scared of the claimant because she shouts all the time. I do not find his explanation for this inconsistency to be convincing. He said he did not mention being scared on 25th February because he thought Ms Ghezzi was referring to teaching staff. However, Ms Ghezzi’s questions on 25th February 2022 didn’t refer to teachers, nor did Child O’s answer, which was that he had no concerns about “any adults”. Ms Ghezzi used the same phrase when questioning him on both occasions she referred to “adults teaching in the class”.

[167]It is unclear why the same phrase on one occasion did not prompt him to think of the claimant, but on another occasion made him think of her.

[168]There may be any number of reasons why Child O only thought about teachers when Ms Ghezzi first questioned him on 25th February 2022, but that is not consistent with his later response. Child O was in year 3 at that time, and has S.E.N.D or special educational needs and disabilities, which may or may not affect his recall. However, in the light of these unexplained inconsistencies in Child O’s different accounts, and that on the dates he feigned an asthma attack the claimant did not teach him, plus the reason he gave for doing so was that he found the lesson difficult, I am not satisfied about Child O’s feigned asthma attacks were in order to avoid being in the claimant’s class.

[169]Later on 4th March 2022, Ms Ghezzi asked the claimant to reflect on her interaction with Child O that day. There was an exchange between Ms Ghezzi and the claimant, and the claimant wrote a statement, as requested. She emailed the statement to Ms Amien-Cloete, it’s titled “Statement Regarding Friday 4th March 2022 with Child O (Beech Class)”. In it the claimant stated Child O had shown no fear in class, he had interacted with happily with her, and she described their conversation.

[170]On 5th March 2022 the claimant e-mailed Ms Amien-Cloete regarding the exchange she had with Ms Ghezzi the day before. The claimant’s e-mail includes the following: I responded that this treatment that I receive is racist. The reason being that when it is white members of staff having allegations or when there are reports made of what has been witnessed, the matters are brushed under the carpet and not addressed in any significant manner, if at all, in comparison to myself as a black member of staff where there is a rigour and enthusiasm to allegations towards myself to paint me as this “aggressive, scary, intimidating” black stereotype tropes

[171]It seems to be part of the claimant’s case that on 7th March 2022, Ms AmienCloete informed her that the matter would be escalated. Whereas Ms AmienCloete’s evidence is that she informed the claimant on the 7th March 2022 that the fact finding was still in progress, and she would update the claimant in due course. Ms Amien-Cloete’s evidence is supported by her e-mail to the claimant on 7th March 2022 (at page 671). Ms Amien-Cloete’s e-mail also explains that some of Beech class had been interviewed, the remainder would be interviewed the following day, and that Ms Amien-Cloete had contacted HR and LADO, and was waiting for a response from the latter. In the circumstances, I accept Ms Amien-Cloete’s evidence that the claimant was not informed on 7th March 2022 that the matter would be escalated.

[172]On 7th March 2022 Anastasia Brown, a supply teaching assistant, was asked to give her account of what happened in the class between the claimant and Child O. Her account is that the claimant is clear in setting boundaries with the children and letting them know what she expects. She added nothing of note occurred during the class. However, she does not specify whether the information she provided relates to 3rd or 4th March 2022.

[173]On 7th and 8th March 2022 Ms Nichols, the respondent’s deputy designated safeguarding lead, surveyed the pupils in Beech class, being O’s class, to find out what they think about the claimant. The respondent’s explanation for surveying the whole class is, it’s claimed the claimant had previously suggested the respondent interview all children, not just the children raising a complaint. This seems to relate to the 2020 disciplinary proceedings (see page 244). The claimant is informed a teacher believes some shy children may find the claimant’s strict approach intimidating; she’s asked if she knows why. The claimant’s reply is that the respondent should ask them. That comment two years previously in relation to a group of children, cannot sensibly be viewed as a request for the respondent to conduct a class wide survey as a result of Child O’s allegations.

[174]Once Ms Nichols completed the survey, she e-mailed a summary of the results to Ms Amien-Cloete, stating 6 out of 30 children felt happy in the claimant’s class, 7 unhappy, and 6 felt her class was average.

[175]The class survey results are at pages 699 to 701 of the bundle. The children’s comments ranged from some reporting feeling “a bit scared”, “scared”, “bored” to “quite sad because Ms Moody is rude teacher”.

[176]It should be noted that some children gave baseless reasons for their negative feelings about the claimant. For instance, one child said they found the claimant scary “Because her name is Moody”. One response was that “She [Ms Moody] is black and black people are quite strict”, which indicates racial stereotyping may have influenced this response.

[177]Some of the other responses reported feeling positive, for instance saying the claimant’s class was “good”, made then feel “calm”, “happy”, or “so happy because I really like her”, and that she “teaches in a fun way”. There were other responses which were neutral, such as “fine”, “ok, fine, chill”. Other responses were difficult to categorise. For instance, one pupil’s response was “no nothing”, some pupils responded the claimant’s class made them feel “tired, because its hard” or “bored” or feel “exhausted” which appears to be more about the lesson content rather than a negative comment regarding the claimant’s interaction with pupils.

[178]I disagree with Ms Nichols’ summary of the results: I calculate that 11 children responded positively (child 1, 2, 3, 8, 14, 16, 19, 26, 28, 30 and 31), 8 children responded neutrally (child 4, 5, 10, 11, 15, 18, 20 and 25), 7 responded negatively (child 6, 7, 12, 13, 17, 27 and 29), this included two responses which were either baseless or indicated stereotyping (see paragraph 176 above). The remainder were difficult to categorise (child 9, 22, 23 and 24).

[179]However one analyses the results, and whatever the reasons for the responses, the fact remains that almost a quarter of Beech class reported feeling sad or scared when the claimant taught them, which is a sizeable minority, that in my judgment warranted the investigation carried out by the respondent.

[180]In a letter dated 10th March 2022, the claimant was informed that she was placed on alternative duties: she was to remain in one class under a teacher’s supervision, and was temporarily removed from the play time and lunch time duty roster.

[181]On 11th March 2022 the claimant e-mailed Mr Vanson, Ms Amien-Cloete, Ms Sleat (HR Business Partner), and Dr Henley. Her e-mail began: I wish to make a complaint on the racial bias undertones, the discrimination and the oppression aimed at me, that I have received by the management of the school, in particular with Mrs Cloete (Executive Head of River Hill Federation) and Miss Ghezzi (Head of School of Dog Kennel Hill Primary School).

[182]The e-mail continues by dealing with a number of the allegations made against the claimant, and she states: … I am being harassed and bullied to get me to leave my employment or to be fired. In addition, according to the Equality Act, what is being done to me is breaking the law.

[183]On 13th March 2022 Dr Henley wrote to the claimant informing her that the respondent was initiating a formal disciplinary investigation, and providing her with general details regarding the allegations. A copy of that communication is not in the bundle.

[184]The respondent appointed Ms Iwobi as the (external) investigating officer. Ms Iwobi introduced herself by sending a letter to the claimant on 23rd March 2022, inviting her to attend an investigation meeting on 19th April 2022. The letter set out the allegations against the claimant at that time which were the subject of the investigation. The allegations were as follows:• Allegation 1: safety/ well-being of children Breaches of appropriate conduct relating to the safety and well-being of children which could constitute emotional harm.

• Allegation 2: safeguarding Failure to follow safeguarding policies and procedures.

• Allegation 3: breakdown in trust and confidence There is a breakdown in trust and confidence between you and the school due to the ongoing pattern of behaviour in relation to how you relate to children. The school feels that despite the support put in place you have not changed your behaviour towards children which is evidenced by the ongoing concerns raised by them and all their parents. Your failure to acknowledge how your behaviour is affecting the children. Further to this, the school is concerned that you do not accept the safeguarding procedures as outlined in policies and procedures and continues to seek to change and adapt them for your own purposes which could result in children being at risk.

[185]The letter further stated Ms Iwobi would also be investigating the complaint/grievance sent by the claimant on 11th March 2022.

[186]Ms Iwobi conducted the first investigation meeting on 19th April 2022 dealing with the generalised allegations as set out in her letter to the claimant dated 23rd March 2022. They also discussed the respondent’s policy documents, with the claimant confirming she had access to these. Other topics discussed were the claimant’s job description, pay, performance management, working relationships, training, and appraisals. The final topic discussed is the claimant’s complaint, the minutes of this are at pages 712 to 715. Mr Vanson, the claimant’s union representative, was present throughout.

[187]Further to the general allegations Dr Henley had sent the claimant on 13th March 2022, on 4th May 2022 she sent particulars of the allegations to the claimant. These were set out in a spreadsheet titled safeguarding chronology of concerns (the “safeguarding chronology”). It contains 25 allegations covering the period from 21st June 2017 to 28th February 2022. The spreadsheet specifies which allegation (1, 2 or 3) each incident relates to.

[188]Ms Iwobi held a second investigation meeting with the claimant on 21st June 2022. The claimant was again accompanied by Mr Vanson. The second meeting was after the claimant had received the safeguarding chronology, so they discussed the specific allegations within that document. Ms Iwobi also asked the claimant whether she considered her relationship with the school had irretrievably broken down; the claimant responded that she wanted to be treated fairly and in accordance with the respondent’s policies. Mr Vanson contributed to this discussion, stating the union considered the relationship was retrievable, and suggested mediation between the parties as an option. The claimant is recorded to be nodding to this.

[189]As part of the investigation, Ms Iwobi also interviewed the following:189.1 Ms Amien-Cloete, executive head teacher;

189.2 Ms Ghezzi, head of school;

189.3 Mr Newman; assistant head teacher;

189.4 Ms Omolaiye, teaching assistant;

189.5 Ms Currier, teaching assistant; and

189.6 Ms Nichols, safeguarding intervention officer and deputy designated safeguarding lead.

[190]In October 2022 Ms Iwobi produced her investigation report recommending the matter is referred for disciplinary proceedings. The investigation report is in two parts. There is a 90-page report titled Disciplinary Investigation Findings, and a 24-page report titled Extracted Conclusions & Recommendations.

[191]The claimant was informed that the matter would progress to a disciplinary hearing by a letter from Dr Henley dated 14th October 2022, which also informed the claimant that she was suspended from her post for 4 days. She was informed the suspension was not a disciplinary sanction and she would continue to receive her full pay for those days. The claimant says that she was told by Ms Ghezzi in the hallway that she was suspended, and this was done in front of children and staff. In her witness statement Dr Henley states she understands it was not the case that the claimant was suspended in front of others, but she does not state the basis for her understanding. I therefore prefer the claimant’s evidence on this point over Dr Henley’s evidence. Ms Anderson says that the claimant has not adduced any evidence that she was suspended in front of others, but I find the claimant’s witness statement is evidence, which I accept in the absence of any direct evidence to the contrary.

[192]Subsequently, on 20th October 2022, Dr Henley wrote to the claimant to notify her that she was suspended pending the disciplinary hearing.

[193]In the investigation report, Ms Iwobi’s descriptions of the allegations, particularly regarding allegations 2 and 3 are more detailed than in her letter dated 23rd March 2022. The allegations, as described in the investigation report, are in bold text where each allegation is dealt with below. The Disciplinary Hearing

[194]At the start of the disciplinary hearing all 4 allegations were read out; the claimant is recorded as not admitting to any of the allegations, including allegation 4.

[195]During the disciplinary hearing Dr Henly presented the respondent’s case, Ms Iwobi presented the investigation report, and Ms Amien-Cloete gave evidence on behalf of the respondent.

[196]The claimant attended with her union representative Mr Robinson. She answered questions put to her, and Mr Robinson made representations on her behalf.

[197]Most of the evidence the disciplinary panel heard regarding the individual complaints about the claimant’s interaction with Child O was when Ms Iwobi presented the investigation report. Although the panel asked Ms AmienCloete some questions about Child O. The panel did not ask the claimant questions about the individual complaints.

[198]As part of Ms Amien-Cloete’s evidence to the disciplinary hearing, she stated the claimant only communicated with the senior leadership team via e-mail, which was unsustainable. Ms Amien-Cloete also states the claimant failed to engage with the appraisal process, and “challenged the vocabulary used about her.” Ms Amien-Cloete continued, that her advice to the claimant regarding her facial expression and body language was based on a direction from the 2020 disciplinary panel. Allegation 1.1 On 23 and 24 February 2022, Child O, who is asthmatic and has special needs/ vulnerabilities/ SEND, feigned breathing difficulties to avoid being in SM's class. On 3 March 2022 Child O disclosed this was because he was fearful of SM, due to her behaviour management, e.g. shouting, being strict etc. This is not in line with our positive behaviour strategies and has led to emotional harm of a child. Dereliction of duty in providing a safe, emotional environment to support Child O in their well- being and education, to the extent that feels distressed when he knows the HLTA a will be covering the class.

[199]When the claimant was informed of the dates Child O had feigned an asthma attack, she clarified that she was not working with Child O’s class on either of those dates, and stated she would cover his class on the second Friday of each month.

[200]Ms Iwobi’s findings were as follows (see paragraph 7.2.5 at page 895): On balance, the nub of the disciplinary allegation relating to Ms Moody was not dependent on the whether she had covered Child O’s class on the specific dates Child O feigned illness. The evidence showed Child O was well aware Ms Moody would cover his class on a (2nd) Friday. It is possible that Child O intended to feign illness to cover a period when he had assumed (correctly or incorrectly) that Ms Moody would be covering his class.

[201]Ms Iwobi’s conclusion is that this allegation has substance. I find the investigation was deficient because it failed to appreciate serious flaws in Child O’s account, or if the flaws were recognised, Child O’s account was nonetheless relied on. The investigation was also procedurally irregular. In relation to this allegation, my reasons are at paragraphs 204 to 211 below, and in relation to the wider investigation, my reasons are at paragraphs 217 to 220, 228 to 235, 262 to 264 and 274 to 277 below. These deficiencies and irregularities were not cured by the disciplinary panel, because it made no meaningful enquiry into the allegations. In particular, the claimant was not asked questions about this allegation. Instead, the disciplinary panel to a large extent relied on the (flawed) investigation report.

[202]The disciplinary panel found this allegation was proven. “This was concluded given the child’s complaint, the report from the parent and the Teacher’s discussion with the child.” (see page 1059).

[203]However, in light of these deficiencies and irregularities in the investigation report, and the inconsistencies in Child O’s complaint, his parent’s complaint, and Ms Ghezzi’s discussion with him, I find a reasonable employer in the disciplinary panel’s position would not have found this allegation was proven.

[204]My reasons are firstly, the allegation was that Child O feigned an asthma attack to avoid being taught by the claimant. However, Child O does not give the claimant covering his class as the reason for feigning an asthma attack. Ms Iwobi finds that Child O knew the claimant covered his class on the second Friday of each month, but he feigned his asthma attacks on Wednesday 23rd and Thursday 24th February 2022. Therefore, there is no evidential basis to conclude that he had feigned an asthma attack to avoid being in her class.

[205]Furthermore, the mother’s account provides no reason for Child O feigning illness on Wednesday 23rd February 2022. The reason Child O gave his mother for feigning illness on Thursday 24th February 2022 was because he was struggling with the lesson; he told his mother the claimant did not teach him on that day. There is no evidence of him feigning illness on any Fridays.

[206]This allegation is further undermined by Ms Ghezzi’s discussion with Child O on 25th February 2022, in particular, the unexplained inconsistencies in Child O’s accounts given on 25th February 2022 compared to 4th March 2022 (see paragraphs 162 to 166 above).

[207]Ms Iwobi’s investigation report states that part of allegation 1.1 relates to another incident involving Child O. That is Child O telling Ms Kellie-Roberts on 3rd March 2022 that he doesn’t like it when the claimant teaches his class; Ms Kellie-Roberts e-mailed Ms Ghezzi about this on 4th March 2022. Ms Ghezzi spoke to Child O on 4th March 2022 and asked him about his interaction with the claimant on that day. Child O is not asked about his interaction with the claimant on 3rd March 2022, being the date he complained. In any event, there is no March 2022 incident on the safeguarding chronology: as stated, that document contains incidents from 21st June 2017 to 28th February 2022. The safeguarding chronology was supposed to be the specific allegations made against the claimant. However, by investigating and making findings regarding 3rd March 2022, Ms Iwobi inappropriately went beyond the scope of the allegations she was tasked to investigate.

[208]During her 5th July 2022 interview Ms Iwobi asks the claimant about 4th March 2022 (see page 758 to 759), but they do not discuss 3rd March 2022, which is the date Child O complained to Ms Kellie-Roberts about. So, Ms Iwobi has found that the allegation relating to 3rd March 2022 has substance even though neither Child O nor the claimant had given an account of what happened on that date, and instead both were asked, and gave an account of, what happened on 4th March 2022.

[209]Ms Iwobi considers that Child O’s account of being scared of the claimant resonates with the survey results from his class, in which some pupils described the claimant as “strict”, “angry” and “scary”. It is correct that there is consistency between Child O’s complaints and some survey responses. But it is also noteworthy that being “scary” and “angry” are also known stereotypes. There are also unexplained striking disparities in the responses even though they are from children in the same class about the same individual. There is no consideration that some responses indicate unconscious racial bias, for instance when a child responds “She [Ms Moody] is black and black people are quite strict”.

[210]The scope of an employer’s enquiries are discretionary, but enquiries must be within a band of reasonable responses. What is reasonable depends on the circumstances, including the severity of the allegation, and the allegations against the claimant are serious, as Ms Iwobi acknowledges at paragraph 7.2.14 of the investigation report. In fact Ms Amien-Cloete stated during her investigation meeting and to the disciplinary panel that she did not consider it was safe for the claimant to work in any school (see page 1029). That was a potentially career ending statement. Although, in the event, the disciplinary panel did not uphold that finding, it nonetheless demonstrates the seriousness of the allegations.

[211]The discrepancies in Child O’s accounts illustrate the potential difficulties relying on the uncorroborated evidence of a child, particularly when these are relied on in relation to safeguarding allegations, where such allegations are (rightly) treated as serious. Therefore, I find a reasonable employer would not rely on Child O’s account without resolving the discrepancies, nor would they rely on an investigation that had the other deficiencies referred to at paragraphs 217 to 220, 228 to 235, 262 to 264 and 274 to 277 below. Allegation 1.2 On 11 March 2022, SM, a qualified first aider failed to follow the school's first aid procedure when child (U), sustained an injury to her lip while SM was covering the class. SM didn't follow health and safety procedure and as a result the school did not comply with its duty of care towards the child and parent in relation to health and safety and reporting guidance and responsibility

[212]Ms Iwobi recommended that this allegation should not be pursued to a disciplinary hearing, and the respondent accepted that recommendation. SM has displayed a historical and ongoing pattern of behaviour towards children, which particularly impact adversely on vulnerable children. SM's behaviour doesn't comply with the school's policies and procedures, despite receiving guidance, training and support over time. Despite the standards being clarified there continues to be a failure on SM's part to follow the school's policies and procedures, including the safeguarding policy, the behaviour management policy, the code of conduct as well as the requirements set out in Keeping Children Safe in Education. The failure to comply with this has led to SM not providing a safe and emotional environment to safeguard children and LADO confirmed that due to this being an ongoing pattern of behaviour it is likely to meet the threshold for emotional harm, as set out in Keeping Children Safe in Education.

[213]The safeguarding chronology contains numerous complaints spanning several years made by pupils or sometimes their parents regarding the claimant's conduct towards children, covering the period June 2017 to 28th February 2022. It contains approximately 25 allegations. Around 15 of those cases relate to children who have special educational needs or who are vulnerable for some other reason, which is disproportionately high as only around 10% of pupils at the school fall into that category.

[214]As to the respondent’s response to the complaints, it with them using a variety of methods, and did not always invoke the disciplinary procedure. For instance, on a number of occasions the respondent held guidance meetings, advice and/or referred the claimant for training when dealing with these complaints.

[215]The respondent’s concern is that despite the advice, training, guidance meetings and reviews, and the previous disciplinary, the safeguarding chronology indicates a continuing pattern of similar complaints. The respondent’s position is that the complaints show a failure by the claimant to follow the school’s policies, in particular the safeguarding policy, the behaviour management policy, the code of conduct and Keeping Children Safe in Education.

[216]During her investigation meeting with Ms Iwobi, Ms Amien-Cloete stated staff have access to the following policies:216.1 Code of Conduct;

216.2 Safeguarding and Child Protection Policy;

216.3 Positive Behaviour Anti-Bullying Policy;

216.4 Whistleblowing Policy; and

216.5 Keeping Children Safe in Education (KCSiE).

[217]The investigation report also lists the provisions in the relevant polices at pages 956 to 958, in the section of the report dealing with key supplementary evidence. However, there is no meaningful discussion with the claimant about the policies during the investigation meeting. During the claimant’s first investigation meeting, Ms Iwobi simply confirmed that the claimant had access to the policies (see page 704).

[218]Nor do the various letters sent to the claimant following guidance meetings and reviews refer to any specific policy that she needs to comply with. The policies are also not referred to in any of the claimant’s appraisals in the hearing bundle. Therefore, while this issue was relied on during the disciplinary process, the claimant had not previously been informed of any specific policy or policies, nor the provisions within those policies, which it's claimed she had contravened.

[219]Where a reference is made to policies, it’s usually the claimant alleging the respondent has failed to follow it’s equality and/or disciplinary policies (e.g. see page 763), or when the claimant explains how she has complied with Team Teach training (page 913 paragraph 7.14.8 and page 1192 regarding an incident on 20th November 2019), and where she states she followed the respondent’s behaviour ladder (see pages 324 and 330).

[220]The respondent repeatedly alleges that in addition to breaching policies, the claimant sought to change these where she disagreed with them. However, this issue was not expressly put to in any of her meetings, reviews or appraisals, nor discussed with her during the investigation meeting. However, this allegation was dealt with during the disciplinary hearing.

[221]From the disciplinary hearing, it seems this allegation relates to two issues. Firstly, it relates to the claimant’s refusal to sign the 2020/2021 appraisal. The claimant explains she did not sign it because she did not agree with Ms AmienCloete’s comments advising she displays soft facial features and doesn’t tower over children. The relevant section of the form requires the appraisee to sign confirming the agree with the comments. The claimant did not agree with the comments, and so did not sign it.

[222]It was put to the claimant during cross examination that she was seeking to change the respondent’s policies. She denied this, stating that what she requested was that the respondent follows its policies.

[223]I do not consider the claimant’s conduct, as described, is her seeking to change the respondent’s procedures. Instead, she is confirming she does not agree with comments contained in that section of the appraisal. She is nonetheless reported to have achieved all targets set in the appraisal, participated in mid-year appraisals and subsequent appraisals. Which further supports my conclusion that she was not seeking to change this system, it is that she disagreed with a comment that was included in one part of the appraisal.

[224]Secondly, the allegation that the claimant sought to change policies and procedures relates to the claimant’s request to meet with or speak directly with LADO when she learned the respondent’s reason for instigating the disciplinary procedure was on LADO’s advice. However, the claimant’s usual approach was to suggest meeting directly with parents or children where they had complained, which is how the restorative justice meeting with Child S and Child T in March 2022 came to be arranged. Against that background, if the respondent’s assertion is that the claimant sought to change policies and procedures is partly based on her suggesting a LADO meeting, in my judgment, that assertion is not justified. It is nothing more than her suggesting a way to try to resolve a complaint.

[225]As to complaints against the claimant continuing despite the support she has been offered, this is dealt with at paragraph 261 herein.

[226]Finally, as to LADO’s assessment that in light of the pattern on the claimant’s behaviour, there is likely to be a risk of emotional harm, the disciplinary panel did not uphold that finding, as expressly stated when dealing with allegation 3. There is a historical, ongoing pattern of SM's behaviour towards children which have adversely impacted on SM’s relationship with the school community and has resulted in a breakdown in trust and confidence. The school cannot trust that she will comply with the policies and procedures. Despite all the support in place, the employee has failed to acknowledge her own behaviour or the impact of her behaviours on children. For this reason, the employee continues to behave outside of the school's policies and procedures and there continues to be a detrimental impact on the children's emotional well-being. The school has little or no confidence that the employee will change her behaviour, because of her unwillingness to acknowledge and recognise her own behaviours and its impact on others, despite the support in place. The employee has demonstrated that she is unwilling/ unable to follow reasonable management instructions and seeks to change or alter established policies and procedures when she does not accept them. She fails to acknowledge the reasons for why following these policies or procedures are important and that they are in place to safeguard all parties. This will therefore continue to place children at risk of harm.

[227]It is evident that there is a consistent theme to the allegations made against the claimant regarding her interaction with children, which some children report makes them feel scared or even vary scared, that she’s angry and always shouting. There was one incident of a child being found to have lied or at least exaggerated when complaining about the claimant following an investigation by Mr Newman. However, aside from Ms Ghezzi’s questioning of Child O, there is limited evidence that the children’s accounts were probed or tested when they complained about feeling scared. In fact, Ms Nichols acknowledged she did not do so, and that she accepted the complaints at face value.

[228]The respondent seems to accept what a child reported was true and/or accurate. Even on occasions when a child complained about the claimant, and she demonstrated she had not taught the child on the date specified, the respondent tended to nonetheless accept the child’s account of the claimant’s behaviour.

[229]Where specific allegations are made, the respondent finds these allegations are proven, even where the evidence is unsatisfactory, ambiguous or incomplete, or the allegations are relied on without any sufficient regard to the claimant’s explanation.

[230]Below are a some of the specific incidents relied on by the respondent, which it has found proven where there has been a failure to take into account the claimant’s explanation, or there are deficiencies in the evidence.230.1 Regarding 10th January 2020, the claimant’s account that she was trying to find a child with a head injury, or that she had asked Ms Mardling to assist Mr Komeh, which Ms Mardling agreed to but then failed to do does not appear to have been considered.

230.2 Ms Ghezzi’s account of 13th January 2020 when she walks past the claimant reproaching a child, is accepted, without taking into account Ms Ghezzi witnessed a snapshot of the exchange, the claimant’s explanation that she used the sandwich method, or Ms Omoniyi’s description of the claimant’s demeanour in the lesson.

230.3 The claimant’s explanation of the interaction with Child O on 12th February 2020, who was play fighting, at risk of potential injury and that the claimant reported the incident to the class teacher at the time.

230.4 The claimant’s interaction with Child K on 10th September 2021, witnessed by a teaching assistant who saw nothing problematic about the claimant’s conduct.

230.5 Child M alleging that on 31st January and 1st February 2022 she was too scared to ask the claimant to use the toilet, even though the claimant did not cover her class on 31st January and it’s unclear whether the claimant covered her class on 1st February.

230.6 The inconsistencies in Child O’s account relating to events on 23rd February, 24th February and 3rd March 2022, which are dealt with above.

[231]The respondent’s view, which I accept, is that a number of complaints over many years, with a broadly consistent theme were being made against the claimant by different stakeholders. However, it is still necessary to give proper consideration to whether the evidence relied on for specific complaints is sufficient, and I don’t consider the respondent has done so.

[232]As to the more general complaints regarding the claimant, the respondent relied on the results of the Beech class March 2022 survey, even though some of the criticisms of the claimant were prima facie baseless (see paragraph 176 above).

[233]Another difficulty with the survey is that the allegations against the claimant are general, none refer to a specific incident when the claimant is said to have made them sad or scared. The general nature of complaints is also relevant when considering the complaints made on or relating to 21st January 2020, 22nd January 2020, 29th January 2020, and 16th March 2021. Relying on general complaints makes it difficult for the claimant to provide her account of a complaint where no specific incident is identified.

[234]One theme of complaints made is that the claimant is said to be angry. Whether the claimant is angry is only something she would know, and she denies interacting angrily with the children. Whether a child believes the claimant is angry, is likely to be based on that child’s perception, which may or may not be accurate. For instance, where a teacher is strict, as it is accepted the claimant is, a child may interpret even her mild reproach as anger.

[235]Ms Amien-Cloete was asked about this during her oral evidence, and she stated that from a safeguarding perspective, it was the views of the child that were taken into account. However, as stated above, aside from Ms Ghezzi’s questioning of Child O, and Mr Newmans enquiries regarding another child’s complaints, there appears to have been little or no probing of the truthfulness or accuracy of the children’s complaints.

[236]Generally, I found Ms Amien-Cloete to have almost unshakeable confidence in the pupils. For instance, when she was cross examined as to whether some of the words used to describe the claimant were age appropriate, and appeared somewhat sophisticated for the child’s age group, without a moment’s hesitation, she responded that one should not underestimate children. In my judgment, that response lacks objectivity. One word attributed to Child O in quotation marks was that he felt “petrified”. Other words children are claimed to have used to describe the claimant are that she is aggressive and intimidating, the latter word being the one Ms Amien-Cloete was specifically cross examined on. Comparing those words, to the words used by Beech class in Ms Nichols’ March 2022 survey, where they describe the claimant as “angry” “always shouting” “scary” and “mad”, there is a marked difference, which tends to undermine Ms Amien-Cloete’s confidence in the children’s vocabulary. It also suggests that where complaints are made by parents, the complaint reflects the parent’s words, not the child’s.

[237]In her evidence Ms Amien-Cloete displayed a genuine concern for the pupil’s wellbeing and safeguarding them from harm, which is entirely consistent with the respondent’s legal obligation, and one that Ms Amien-Cloete was evidently deeply committed to. However, again I found her to lack objectivity in the application of this principle. For instance, she saw nothing wrong with her advice to the claimant during her 2020/2021 appraisal to display a “soft” facial expression. In particular, Ms Amien-Cloete failed to appreciate how such comments may be viewed from an equality perspective, particularly as regards race.

[238]Ms Amien-Cloete written and oral evidence display a lack of insight around unconscious racial bias. When the claimant initially objects to the comments, Ms Amien-Cloete focuses only on the advice regarding the claimant’s “body language”. Nonetheless, I find the claimant was justified in perceiving these comments, particularly advising the claimant to have “soft facial” features as indicative of negative racial stereotyping, more specifically racial anger bias where one more readily misattributes anger to a black person compared to a white person. This comment seems to reflect the trope of the claimant as an “angry black woman” to use the claimant’s words.

[239]Ms Amien-Cloete stood by this comment during the investigation meeting (see paragraph 8.2.8 at page 930). In response to whether Ms Amien-Cloete had concerns with Ms Moody’s facial expressions, Ms Amien-Cloete claimed that when communicating with her, Ms Moody has a very angry facial expression, never making eye contact, but appearing angry and tense. In response to Ms Iwobi suggesting the above might be Ms Moody’s (resting) face, Ms AmienCloete said she has seen Ms Moody smiling and quite relaxed at times and that is not the face Ms Amien-Cloete experiences.

[240]Ms Amien-Cloete’s response to Ms Iwobi does not answer the question the latter asked her. Ms Amien-Cloete answers by describing how the claimant’s face is different when she’s smiling. However, the claimant smiling is not her resting face. This comment tends to suggest that unless the claimant is smiling, Ms Amien-Cloete seems to think the claimant is tense or is angry. This indicates unconscious racial anger bias on Ms Amien-Cloete’s part.

[241]Ms Amien-Cloete also failed to appreciate the impact of this comment on the claimant, or how strongly the claimant objected to the comment, even though by refusing to sign the appraisal form containing this comment the claimant did not receive her annual pay increment. That should have caused Ms Amien-Cloete to pause for thought.

[242]I also consider that when the claimant or her union representative sought to raise issues regarding discrimination, Ms Amien-Cloete was initially somewhat dismissive of these. In his e-mail to Ms Amien Cloete sent on 8th November 2018, Mr Taper reported he found the conduct of Ms Melehi, a member of the senior management team, towards the claimant to be inappropriate, bullying and harassment. In the same e-mail, Mr Taper referred to the claimant being stereotyped. I have seen no evidence that Ms AmienCloete ever asked the claimant about these comments.

[243]Some time later, the claimant complained of bias during the disciplinary hearing on 13th February 2020, she also complained of bias and profiling on 30th April 2020, of discriminatory behaviour in her November 2020 appeal, on 16th July 2021 she complained Ms Amien-Cloete’s comments in the 2020/2021 appraisal were discriminatory and stereotyping, and she complained of discrimination during her guidance review meeting on 25th January 2022. It is in response to the latter complaint, that Ms Amien-Cloete first expressly addresses the issue of discrimination. However, Ms AmienCloete’s response is that she did not understand the basis of the allegations, but Ms Amien-Cloete displayed no particular interest in seeking to understand.

[244]I also find that the respondent’s view of race discrimination to be somewhat simplistic, and that it seemed to lose focus on equality at the expense of safeguarding, rather than achieving a balance between them.

[245]Regarding the respondent’s simplistic approach to race discrimination: during the investigation meeting and at the start of her oral evidence, the claimant was asked how she would describe the race or ethnicity of various individuals, even though a number of those individuals were not relied on as comparators. The respondent’s written evidence repeatedly states that Ms Williams who conducted the external investigation (or fact find) in 2021, and Ms Iwobi, are black. This point was put to the claimant in cross examination. Thus, implying the investigations wouldn’t be discriminatory because the investigators are black. This position tends to suggest they are immune from unconscious bias because they are black, which is not necessarily the case.

[246]As to the failure to achieve a balance between equality and safeguarding, in all informal meetings, guidance reviews, appraisals and disciplinary processes in 2020 and 2022, the respondent did not consider the claimant’s race to be a relevant consideration. That was despite her raising this prior to the 2020 disciplinary proceedings, and on various occasions prior to the 2022 disciplinary proceedings.

[247]Another indicator that equality was not prioritised was in relation to the training governors received. Mr Finn had previously been chair of governors, and was chair of the 2022 disciplinary panel. During the hearing I asked him what training the respondent had provided to enable him to fulfil his role, he referred to training he had received on safeguarding and he received training in connected with his area of responsibility as a governor. Even after probing, he did not mention receiving any equality training. When I asked whether he had received any such training, he explained he had but not through the respondent, but had undertaken such training as part of his own professional development for his outside business. I find it surprising that the respondent has not ensured governors, particularly someone who had been chair of governors, receives such training.

[248]Returning to the treatment of issues of race during the disciplinary process. Ms Iwobi also refers to Ms Nichols and Ms Omolaiye who are both black, but stated in their interviews they do not consider the respondent treats them unfairly or racially discriminates. However, unconscious bias may manifest itself in different ways even how it influences an individual’s view of different people of the same race, depending on how closely that individual perceives someone may fit a stereotype.

[249]I find these factors reflect the respondent’s somewhat simplistic view of race discrimination, seemingly limiting it to overt discrimination, and also a lack of consideration for when it may be at play.

[250]Ms Iwobi points out that Ms Omolaiye is black, yet she accepted Ms AmienCloete’s feedback regarding adapting her communication style, but Ms Omolaiye did not consider she had been treated unfairly or discriminated against. According to Ms Amien-Cloete’s oral evidence, the advice she has given relates to tone of voice and body language. But there is no indication that the feedback given to Ms Omolaiye suggested she had an angry face that required her to soften her features, that she intimidated children so should avoid “towering” over them, or that it reflected stereotyping, whereas the feedback to the claimant echoes a racial trope.

[251]As with anger, dealt with above, whether someone is shouting, raising their voice, or their voice is at an ordinary volume may also be subjective. Members of staff distinguish between shouting and raising one’s voice. For instance, Ms Amien-Cloete and Ms Ghezzi both state the school is a no shouting school. Yet Ms Ghezzi acknowledged occasionally adults may need to raise their voices, for instance in the playground (see paragraph 7.3.20 on page 899). Ms Ghezzi also acknowledges “… some children find it difficult to tell the difference between loud voices and shouting …” (see paragraph 7.3.20 on page 899). Similarly, Ms Omolaiye comments that some children think someone is shouting unless they speak in a very low voice (see page 931 paragraph 8.2.15).

[252]The definition used of a safeguarding concern also appears to be subjective. During cross-examination, Ms. Amien-Cloete defined a safeguarding issue to be where an observer witnesses an interaction with a child which makes the observer uncomfortable. There are likely to be incidents which would easily and universally be recognised as safeguarding issues, but there are also incidents where the assessment is likely to be highly subjective.

[253]This subjectivity is further reinforced by Ms Amien-Cloete stating during the disciplinary hearing that: “Children with SEND are often more reliant on body language and facial expression to interpret what is being communicated.”

[254]It means what a child with SEND interprets as the claimant being angry, may not be anger at all on her part. This may also explain why a high proportion of the complaints are from SEND children.

[255]Subjectivity is relevant to many of the complaints, which relate to how the claimant is perceived or her alleged manner. For instance, Ms Amien-Cloete acknowledges Ms Kellie-Roberts and the claimant’s behaviour management is the same “but their manner for executing those strategies was different” (see paragraph 7.3.16 at page 898). She made a similar comment regarding Child M stating “Ms Moody’s manner … instils fear in the children, where they do not feel comfortable to ask to go to the toilet” (paragraph 7.12.9 at page 911). This example is telling because the claimant did not teach Child M on one of the days in question, and may not have taught her on the second day either.

[256]Also, summarising Ms Williams’ fact find, Ms Iwobi writes: Ms Moody was using the behaviour strategies to good effect to get the children to comply, her manner made children feel anxious, causing the children to complain to their parents” (paragraph 7.12.20 page 913). There are similar examples at paragraphs 7.13.4 on page 913, paragraph 8.2.9 on page 930 and paragraph 9.16.11 on page 963.

[257]Where the above references relate to specific incidents, they are not to the claimant shouting at or even raising her voice to children, otherwise one would have expected the person describing the incident to say that. Nor is it said that she’s used inappropriate language or been overly strict. As to the latter, the respondent acknowledges that the claimant’s behaviour management is similar to others, which is reflected in the results from the Beech class survey. As stated, it’s not the claimant’s behaviour management, but the manner in which she implements behaviour management. The vagueness of expressions such as “manner”, and “tone”, increase the likelihood of subjectiveness and unconscious racial bias influencing the responses.

[258]The subjectiveness of any assessment of the claimant’s manner, or how she may be perceived, is also illustrated by the stark differences in the survey responses from the pupils in Beech class, which points to a degree of subjectivity.

[259]It is evident that several pupils in Beech class reported serious difficulties with the claimant, children in other classes have also done so either themselves or through their parents. Ms Iwobi correctly identified there was broad consistency across the various complaints received. However, there are other consistencies which Ms Iwobi has not taken into account when reaching her conclusions. In particular, that broadly speaking, when an adult is present when an allegation has been made, they have not witnessed any problematic behaviour from the claimant.

[260]Ms Iwobi suggests that is because the claimant’s problematic conduct happens when no adults are around. However, apart from the incidents on 13th January 2020 and 16th December 2021, it’s unclear which other incident is said to have occurred without another adult present. Furthermore, the claimant told Ms Iwobi that when there is no other adult present, she leaves the class door open, which wasn’t disputed. It means that if she was shouting at children, anyone in the hallway or possibly even another class would hear.

[261]While acknowledging the respondent supported the claimant with training and guidance, these measures focused only on changes the claimant needed to make. It never occurred to the respondent to explore whether unconscious racial bias was the cause or contributed to the complaints being made or how the complaints have been or were being handled.

[262]Ms Iwobi accepts Ms Nichols’ opinion that the children have not colluded or been malicious in their survey responses about the claimant. However, Ms Nichols acknowledges that the children have spoken amongst themselves.

[263]The respondent should view the evidence from all likely viewpoints, including whether unconscious racial bias may be at play, before reaching its conclusion. And based on the evidence available to the respondent, it should have considered whether there had been racial stereotyping in this case. The available information was, firstly, whether someone perceives another person as angry, scary, shouting, raising their voice or shouting, can be subjective. Secondly, how someone perceives another’s tone and manner can also be subjective. Thirdly, some of the survey responses indicate that a few complaints were baseless based on the claimant’s name or because she was black. Some complaints did not stand up to scrutiny, complaining about the claimant on days she did not teach them or when an adult present witnessed no problematic behaviour. The evidence of the children talking amongst themselves about the claimant, rumour and/or her reputation could also be a factor influencing the children’s perspective. This was sufficient information for the respondent to at least explore whether racial bias may be at play, but it did not do so. As stated, it focused entirely on the claimant being the cause of the problem.

[264]I consider the failure to explore or investigate unconscious racial bias, combined with the deficiencies in the evidence, particularly as it relates to specific allegations seriously undermines the respondent’s approach, meaning the conclusions it has reached are fundamentally flawed.

[265]When considering the claimant’s Equality Act 2010 complaints, and the degree to which unconscious racial bias may have influenced how complaints made against the claimant were perceived and dealt with, the way the claimant dealt with cross examination is relevant. She was cross examined very closely for almost one day. She gave her answers calmly, without any sign of anger or irritation, despite Ms Anderson’s proper but robust challenge of her evidence. The only time the claimant’s demeanour changed was when she became tearful while cross examined about Ms Amien-Cloete’s comments that she should display soft facial features and she shouldn’t tower over the children. I found the claimant’s manner and tone during cross examination to be appropriate, and at odds with the general tenor of the complaints.

[266]In my view the complaints made against the claimant reinforced Ms AmienCloete’s own view of the claimant, which I find was based on negative racial stereotyping. She perceived the claimant to be angry, she failed to consider the claimant’s supposedly “angry face” was simply her resting face, even when Ms Iwobi asked her directly. When the claimant repeatedly raised that her treatment was based on prejudice, stereotypes and profiling, Ms AmienCloete initially failed to address these points. She also did not address these points when they were raised by Mr Taper in his e-mail sent on 8th November 2018, when he complained that the claimant was being subjected to discrimination, including a heightened level of scrutiny.

[267]Some of the respondent’s allegations and the claimant’s informal concerns are interlinked. The respondent regarded the claimant’s refusal to accept its findings and recommendations that her interaction with pupils was sometimes inappropriate, while the claimant considered the respondent’s view was based on discriminatory reasons.

[268]Ms Iwobi concludes that the claimant’s informal concerns do not stand up to scrutiny. As part of her additional observations, Ms Iwobi states: It remains unclear why Ms Moody waited until March 2022 to raise/disclose formally her dated concerns, when she had opportunities to do so earlier. Consequently, it was not clear whether aspects of Ms Moody’s more recent “informal concerns” against Ms Amien-Cloete and Ms Ghezzi were intentionally vexatious and/or malicious and whether some of Ms Moody’s claims presented as attempts to cause reputational damage to senior leaders who had raised concerns about Ms Moody’s practice.

[269]Ms Iwobi’s comment does not seem to take into account that before the claimant e-mailed Ms Amien-Cloete in March 2022, she had previously raised this issue, including in earlier e-mails to Ms Amien-Cloete about what she perceived to be biased and discriminatory treatment, as set out above.

[270]In reality, the claimant had complained prior to her e-mail sent on 11th March 2022, her earlier complaints were either not addressed or were denied without investigation. When she raised the complaint in March 2022, Ms Iwobi considered the timing of the complaint suggested it was vexatious or malicious, and consequently recommended that the claimant has caused the relationship between the claimant and the respondent to irretrievably breakdown. Ms Iwobi made that recommendation to the respondent as a fourth allegation, but it appears to be based on Ms Iwobi’s mistaken belief that March 2022 was the first time the claimant had e-mailed Ms Amien-Cloete about concerns of this nature. The cumulative impact of your actions is such that the school has lost trust and confidence. During the investigation, it is clear that Sandra has also lost trust and confidence in the school and the school does not believe that this trust and confidence can be repaired. The panel are asked to consider whether there has been an irretrievable relationship breakdown between the school and yourself, as the employee, such that the relationship is “at the point of no return”, with “no reasonable prospect of reconciliation” or of a productive future working relationship between the school and the employee in question. If this is the case, the governors will need to consider dismissal on grounds of an irretrievable breakdown of the relationship.

[271]Some of the wording of allegation 4 is framed as a statements or conclusion rather than an allegation. For instance, the opening sentence asserts that the school has lost trust and confidence in the claimant, which is stated before any evidence had been heard. The allegation continues that “the school does not believe that this trust and confidence can be repaired.” It reads as if the respondent had already concluded at the start of the disciplinary hearing that the trust and confidence between the claimant and the respondent had been irretrievably lost.

[272]This fourth allegation was not amongst the allegations notified to the claimant before the investigation meetings. The respondent states that she was asked about her relationship with the respondent during the second investigation meeting, which is correct: she was asked whether she considered the relationship between her and the school had broken down, which she said it had. When asked whether it had broken down irretrievably, her union representative, Mr Vanson stated the union considered the relationship was retrievable, to which the claimant is recorded as nodding. This discussion did not make clear that this was or would be treated as a disciplinary matter, nor was she informed this was a matter that could result in dismissal. Furthermore, the issue of trust and confidence was not specifically discussed, it was the more general issue of whether there had been a breakdown in the relationship.

[273]The first time the claimant was informed that this was a fourth allegation was in the letter dated 15th November 2022 sent to her by Dr Henly which confirmed the outcome of the investigation was that the matter was proceeding to a disciplinary hearing, to be held on 6th December 2022.

[274]By recommending an additional (fourth) allegation, I consider Ms Iwobi went beyond her role as an investigator, which undermines her impartiality. She was tasked with investigating 3 allegations, but after completing the investigation, she proposed a fourth allegation. This resulted in a number of procedural irregularities. The first was that the claimant was not informed prior to either of the investigation meetings that whether there was a loss of trust and confidence between the parties was part of the investigation. The respondent maintained this was not unfair because Ms Iwobi discussed whether the relationship had irretrievably broken down during the claimant’s second investigation meeting. However, at that time, the claimant was unaware this was a disciplinary issue that could, and in fact did, lead to her

[275]I do not accept Ms Anderson’s submission that Ms Iwobi’s recommending a fourth allegation was in accordance with the scope of her instructions. Ms Anderson relies on paragraph 3.1.8 on page 888, which stated one purpose of the investigation was “To make recommendations regarding the way forward.” I consider paragraph 3.1.8 refers to recommendations on the way forward in relation to the complaints, namely whether she recommended disciplinary action for some, all or none of the complaints. That is consistent with the ACAS guidance on investigations at work: section 6 refers to recommendations should be about whether formal action, informal action or no further action is recommended.

[276]A further issue which tends to undermine Ms Iwobi’s impartiality is that as part of the 2022 disciplinary proceedings, the claimant asked Ms Iwobi to interview Ms Brown as part of the investigation, but Ms Iwobi did not do so. The claimant says Ms Iwobi only interviewed the witnesses that the respondent requested. The respondent maintains the claimant had the opportunity to call Ms Brown as a witness for the disciplinary hearing, and that reference was made to her in the appendices. However, there were over 130 appendices to the 90-page investigation report, and as Mr Finn confirmed in cross examination, while the disciplinary panel were provided with a complete bundle, they had particular regard to the investigation report. In fact, from his oral evidence, it seems the disciplinary panel relied heavily on the investigation report, because Mr Finn referred to Ms Iwobi as an expert. He also stated the panel trusted Ms Iwobi would include everything relevant in her report, and that she would have interviewed Ms Brown if she considered it relevant. The extent of the panel’s reliance on Ms Iwobi’s report means that the disciplinary hearing did not cure the deficiencies and irregularities in the investigation.

[277]Yet further, when the school was making enquiries before Ms Iwobi was appointed, Ms Brown made a statement on 7th March 2022. When that statement was read to Mr Finn during his oral evidence, he stated he did not recall being referred to the statement during the disciplinary hearing. And when asked whether, had he been referred to the statement whether it would have changed his decision, he acknowledged it may have done.

[278]I find that a reasonable employer in the disciplinary panel’s position, and having regard to the severity of the allegations being made against the claimant, would have recognised the deficiencies and irregularities in the investigation report and would not consider it reasonable to place such reliance on its contents.

[279]The disciplinary hearing considered whether mediation would resolve the relationship difficulties that had arisen between the claimant and the respondent, or whether the claimant could be redeployed to work at another school within the federation. Ms Amien-Cloete did not consider mediation or redeployment would address the situation. In her opinion, the claimant refused to follow the relevant policies, and instead sought to change them where she disagreed with them. So according to Ms Amien-Cloete, neither mediation nor redeployment would resolve these.

[280]For the reasons already stated, I do not consider the claimant sought to change policies, I also consider this is an issue which has not been adequately raised with her prior to the disciplinary hearing. For instance, in the claimant’s appraisals or guidance review meetings the respondent has not specified which specific policies she has refused to follow or sought to change, and which provisions within those policies, nor was it raised with her during the investigation meeting.

[281]In a letter to the claimant dated 16th December 2022 the respondent notified her of the outcome of the disciplinary hearing, which was as follows:

[282]Allegation 1: the panel considered on the balance of probabilities the Child O had feigned breathing difficulties to avoid being in the claimant’s class. However, the panel did not consider the allegation constituted emotional harm. Accordingly, the allegation was partially upheld.

[283]Regarding allegation 2: the panel determined that the allegation on balance was partially upheld due to the volume of data that demonstrated the number of safeguarding incidents and complaints involving pupils at the school. In addition, it considered a pattern had emerged that the children involved in exchanges with the claimant were vulnerable. There was no specific finding regarding the various allegations relied on to support allegation 2.

[284]Allegation 3: the panel considered the claimant’s actions demonstrated that she had not acknowledged the seriousness of the issues and displayed a lack of self- reflection meaning the pattern of behaviour was likely to continue. Therefore, the Panel concluded that trust and confidence had broken down because, based on her past performance, management believe the claimant is a risk to the children's emotional well- being.

[285]The panel were unable to conclude that children were being placed at risk of harm in the future. Therefore, allegation 3 was partly upheld.

[286]In relation to allegations 1, 2, and 3, the Panel issued a Final Written Warning to remain on the claimant’s file for 9 months.

[287]As to allegation 4: The panel upheld this allegation because the prospect of reconciliation and any productive future working relationship between both parties is not possible. You were asked by the panel whether or not you perceived that management were racist. You were unable to confirm your response. You indicated at the hearing that at the moment you still felt that race may have been an issue. You were not prepared to withdraw your allegation of discrimination until the end of this process. You maintained your view despite the school fully explaining the circumstances and demonstrating that they had applied procedures fairly and consistently. The panel's view is that this continued allegation of discrimination tests that the breakdown in relationships is irreconcilable.

[288]When dealing with allegation 4, the disciplinary panel’s decision, as outline in the letter, does not explain why mediation or deployment were not pursued.

[289]The sanction imposed in respect of allegation 4 was that the claimant was dismissed with two months’ notice on the grounds of some other substantive reason, namely that a productive future working relationship was not possible. The last day of her employment was 16th February 2023.

[290]The letter also notified the claimant that she had until 13th January 2023 to submit any appeal.

[291]Paragraph 6.1(e) of the respondent’s disciplinary procedure states that where possible the appeal should be heard within 20 working days of the employee submitting their request for an appeal.

[292]The claimant submitted an appeal on 12th January 2023 relying on 4 grounds. Firstly, the respondent failed to follow its disciplinary procedure, for instance by failing to provide a comprehensive summary of the allegations. Secondly, the respondent disregarded various policies such as KCSiE and the ACAS Code to justify its prejudice when pursuing allegations against her, compared to the treatment other members of staff received. Thirdly, she was treated less favourably by being subjected to a harsher level of scrutiny compared to other members of staff. Fourthly, she wished to rely on new evidence, which she would submit in due course.

[293]According to the respondent’s disciplinary procedure, ordinarily the claimant’s appeal should have been heard by around 9th February 2023, being 20 working days from her submitting her appeal request on 12th January 2023. The claimant states she received no response prior to 22nd February 2023. It is correct that she did not receive a substantive response until 22nd February 2023, but Dr Henley acknowledged receipt of the appeal on the date the claimant sent it, namely on 12th January 2023. That acknowledgement is in the bundle, so I accept Dr Henley’s evidence that she responded to acknowledge receipt of the claimant’s appeal.

[294]Nonetheless, I find there was a significant delay in responding to the claimant regarding her appeal, because Dr Henley’s acknowledgement is merely that, it does not substantively address the claimant’s appeal request.

[295]The claimant initially received no substantive response to her appeal, so emailed the respondent on 15th February 2023 seeking an update. On 22nd February 2023 Dr Henly wrote to the claimant requesting clarification regarding certain aspects of her appeal. The claimant addressed these queries in an e-mail sent on 25th February 2023.

[296]By a letter dated 24th March 2023, the claimant was invited to attend an appeal hearing on 26th April 2023.

[297]From 24th March 2023 to 26th April 2023 the claimant and Ms Muir, the respondent’s head of governor services, exchanged a series of e-mails. In the event, the claimant did not attend the appeal hearing on 26th April 2023. Dr Henley acknowledges there was a delay in arranging the appeal hearing; in her written and oral evidence she explains there were difficulties finding a panel of governors, who are volunteers, and the school was also working towards achieving full academy status.

[298]On 26th April 2023, Dr Henley responded to an e-mail the claimant sent to Ms Moussa stating she would respond substantively by 3rd May 2023, however, she did not respond until 26th June 2023.

[299]Dr Henley denies the way the claimant’s appeal was dealt with was due to her

[300]Early conciliation with ACAS began on 10th March 2023, and ended on 21st April 2023. The claimant presented her claim form on 20th May 2023 accompanied by a 30-page particulars of claim. She later submitted amended particulars of claim. The respondent submitted its original grounds of resistance on 20th September 2023, followed by amended grounds of resistance on 24th September 2024, with re-amended grounds of resistance submitted on 29th November 2024. THE LAW Time Limits

THE LAW

[301]Section 123 of the Equality Act 2010 states:(1) Subject to section 140B proceedings on a complaint within section 120 may not be brought after the end of— (a) the period of 3 months starting with the date of the act to which the complaint relates, or (b) such other period as the employment tribunal thinks just and equitable.

(2) Proceedings may not be brought in reliance on section 121(1) after the end of (a) … (b) such other period as the employment tribunal thinks just and equitable. the purposes of this section—

(3) For the purposes of this section— (a) conduct extending over a period is to be treated as done at the end of the period;

[302]Section 123(1)(a) of the Equality Act 2010 provides that a claim must be brought within three months, starting with the date of the act to which the complaint relates.

[303]The three-month time limit is paused during ACAS early conciliation: the period starting with the day after conciliation is initiated, and ending with the day of the ACAS certificate, does not count (section140B(3) the Equality Act). If the ordinary time limit would expire during the period beginning with the date on which the employee contacts ACAS, and ending one month after the day of the ACAS certificate, then the time limit is extended, so that it expires one month after the day of the ACAS certificate (section 140B(4) the Equality Act).

[304]Section 123(3)(a) the Equality Act provides that conduct extending over a period is to be treated as done at the end of the period. In Hendricks v Commissioner of Police of the Metropolis

[2003] ICR 530

, the Court of Appeal held that Tribunals should not take too literal an approach: the focus should be on the substance of the complaint that the employer was responsible for an ongoing situation or a continuing state of affairs, in which an employee was treated in a discriminatory manner.

[305]Section 123(1)(b) the Equality Act provides that the Tribunal may extend the three-month limitation period, where it considers it just and equitable to do so. That is a very broad discretion. In exercising it, the Tribunal should have regard to all the relevant circumstances, which may include factors such as: the reason for the delay; whether the Claimant was aware of his right to claim and/or of the time limits; whether he acted promptly when he became aware of his rights; the conduct of the employer; the length of the extension sought; the extent to which the cogency of the evidence has been affected by the delay; and the balance of prejudice (Abertawe Bro Morgannwg University Local Health Board v Morgan

[2018] ICR 1194

). Unfair Dismissal

[306]Section 94 of the Employment Rights Act 1996 gives employees the right not to be unfairly dismissed. Enforcement of the right is by way of complaint to an employment tribunal under section 111. The claimant must show that she was dismissed by the respondent under section 95.

[307]So far as is relevant, section 98 of the Employment Rights Act 1996 states:(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show- (a) the reason (or, if more than one, the principle reason) for the dismissal, and (b) That it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.

(2) A reason falls within this subsection if it- (a) … (b) Relates to the conduct of the employee

[308]Section 98(4) deals with fairness generally and provides that the determination of the question whether the dismissal was fair or unfair, having regard to the reason shown by the employer, shall depend on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee; and shall be determined in accordance with equity and the substantial merits of the case.

[309]In misconduct dismissals, there is well-established guidance on fairness within section 98(4) in the decisions in Burchell

1978 IRLR 379

and Post Office v Foley

2000 IRLR 827

. The Tribunal must decide whether the employer had a genuine belief in the employee’s guilt. Then the Tribunal must decide whether the employer held such genuine belief on reasonable grounds and after carrying out a reasonable investigation. In all aspects of the case, including the investigation, the grounds for belief, the penalty imposed, and the procedure followed, the Tribunal must decide whether the employer acted within the band or range of reasonable responses open to an employer in the circumstances. It is immaterial how the Tribunal would have handled the events or what decision it would have made, and the Tribunal must not substitute its view for that of the reasonable employer (Iceland Frozen Foods Limited v Jones

1982 IRLR 439

, Sainsbury’s Supermarkets Limited v Hitt

2003 IRLR 23

, and London Ambulance Service NHS Trust v Small

2009 IRLR 563

). The Equality Act

[310]The Equality Act 2010 sets out the legislative provisions relevant to the complaints of discrimination and harassment in this case. An explanation of the Act’s provisions are contained in the Employment statutory code of practice published by the Equality and Human Rights Commission (the “Code”), which is a tool to assist tribunals when interpreting the law.

[311]Section 4 of the Act lists the protected characteristics covered by its provisions, which includes race.

[312]Race is defined at section 9(1) as including colour, nationality, ethnic or national origins. Direct Discrimination

[313]Section 13(1) of the Equality Act 2010 states: A person(a) (A) discriminates against another

(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.

[314]Under section 13 (1) of the Equality Act 2010 direct discrimination takes place where a person treats the claimant less favourably because of race then that person treats or would treat others. Under section 23 (1), when a comparison is made, there must be no material difference between the circumstances relating to each case.

[315]Ordinarily, it is appropriate for a tribunal to consider whether the claimant received less favourable treatment than the appropriate comparator, then consider whether the less favourable treatment was because of race. However, in some cases, for example where a hypothetical character is used, the reason why the claimant was treated as she was would be considered first (see Shamoon v Chief Constable of Royal Ulster Constabulary

[2003] IRLR 285

[316]Decisions are frequently reached for more than one reason. Provided the protected characteristic or, in a victimisation claim, the protected act, had a significant influence on the outcome, discrimination is made out (see Nagarajan v London Regional Transport

[1999] IRLR 572

[317]It is recognised that very little discrimination today is overt or even deliberate. Witnesses can even be unconsciously prejudice. Harassment

[318]Harassment is defined in section 26(1) of the Equality Act as: (1) A person (A) harasses another (B) if- (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purpose or effect of- (i) violating B’s dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B. …. (4) In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account- (a) the perception of B; (b) the other circumstances of the case; (c) whether it is reasonable for the conduct to have that effect.

[319]Paragraph 7.9 of the Code states: Unwanted conduct “related to” a protected characteristic has a broad meaning in that the conduct does not have to be because of the protected characteristic. Victimisation

[320]By section 26 of the Equality Act:(1) A person (A) victimises another person (B) if A subjects B to a detriment because— (a) B does a protected act, or (b) A believes that B has done, or may do, a protected act.

(2) Each of the following is a protected act— (a) bringing proceedings under this Act; (b) giving evidence or information in connection with proceedings under this Act; (c) doing any other thing for the purposes of or in connection with this Act; (d) making an allegation (whether or not express) that A or another person has contravened this Act.

(3) …

(4) …

(5) The reference to contravening this Act includes a reference to committing a breach of an equality clause or rule.

[321]In summary, victimisation is where an employer subjects an employee to a detriment because the employee has done a ‘protected act’ or because the employer believes that the employee has done or might do a protected act in the future. Burden of Proof

[322]Section 136 of the Act deals with the burden of proof, and includes the following:(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.

(4) The reference to a contravention of this Act includes a reference to a breach of an equality clause or rule.

[323]Therefore, to determine whether the burden of proof has been discharged requires a two-fold test.

[324]Firstly, the claimant must establish, on the balance of probabilities, facts from which the inference could properly be drawn by the tribunal that, in the absence of any other explanation, an unlawful act was committed.

[325]If so, the second stage is engaged, which shifts the burden of proof to the respondent who is required to prove on the balance of probabilities, that the treatment in question was in no sense whatsoever on the grounds of the claimant’s protected characteristics.

[326]Guidelines on the burden of proof were set out by the Court of Appeal in Igen v Wong

[2005] IRLR 258

. At stage one, the burden is on the claimant, who must show there are primary facts from which the Tribunal could decide, in the absence of any other explanation, that there has been unlawful conduct. All that is needed at this stage are facts from which an inference of prohibited conduct is possible. At this stage of the test, the employer’s explanation is disregarded.

[327]Once the claimant discharges the burden of proof it shifts to the respondent to prove, on the balance of probabilities, that the treatment was in no sense whatsoever on the grounds of the protected characteristic.

[328]The Court of Appeal in Madarassy v Nomura International plc

[2007] ICR 867

, a case brought under the then Sex Discrimination Act 1975, states: The burden of proof does not shift to the employer simply on the claimant establishing a difference in status (EG sex) and a difference in treatment. Those bare facts 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. CONCLUSIONS ON THE ISSUES

[329]I have applied the above law to the findings of fact that I have made in order to answer the questions raised by the issues, and my conclusions on those issues are set out below. In doing so I have taken into account the parties’ evidence, arguments and submissions. Time Limits Were the complaints made within the time limit in section 123 of the Equality Act 2010? Namely, within three months (plus early conciliation extension) of the act to which the complaint relates?

[330]The complaints relied on cover the period from 9th October 2015 to 26th April 2023. The claim form was presented on 20th May 2023. The respondent maintains that any acts relied on prior to 11th December 2022 are outside the time limit, allowing for early conciliation. Therefore, on the respondent’s case, any complaints between 9th October 2015 to 10th December 2022 are outside the time limit.

[331]I accept that, allowing for the early conciliation extension, specific acts relating to the period prior to 11th December 2022 would be outside the statutory time limit at section 123(1)(a). If not, was there conduct extending over a period?

[332]Having regard to the substance of the complaints from 9th October 2015 to 26th April 2023, I consider the acts complained of amount to conduct extending over a period.

[333]The respondent’s case is that there is a continuing pattern throughout this period where allegations of a similar nature have been made against the claimant by children, parents and members of staff regarding the claimant’s interaction and communication. Therefore, although the person making the various allegations may be different, the nature of the allegations is similar. The claimant’s case is that throughout this period the respondent handled those complaints in a discriminatory manner compared to the way complaints regarding other colleagues are dealt with. She said this included subjecting her to a higher level of scrutiny, a more vigorous investigation of complaints made against her, preferring the account given by others over her account, such that she has been found to be guilty of the misconduct alleged, and taking action where less serious or no action was taken against colleagues against whom complaints were made. If so, was the claim made to the Tribunal within three months (plus early conciliation extension) of the end of that period?

[334]The complaints in relation to the individual causes of action are as follows:334.1 Direct race discrimination covers the period from 9th October 2015 to 16th December 2022.

334.2 Harassment covers the period 9th October 2015 to 26th April 2023.

334.3 Victimisation covers the period 8th January 2021 to 26th April 2023.

[335]With each claim, the end of the period over which the conduct extends is after 11th December 2022, accordingly, I find the claims were brought within the time limit prescribed by section 123(3). If not, were the claims made within a further period that the Tribunal thinks is just and equitable?

[336]In case I am wrong about the claims relating to conduct that extended over a period of time, I will also consider whether it is just and equitable to extend the period.

[337]In doing so, I have firstly considered the length of the delay, which is considerable. The claimant is seeking to go back to events which took place ten years ago, which tends to weigh against extending the time limit. The respondent also argues that due to the passage of time, the earlier events involve individuals who no longer work at the school, for instance Ms Walker and Ms Melehi.

[338]Having regard to the fact that the 2015 and 2016 allegations are dated, which according to the respondent, will impact its ability to deal with them, I find it is not just and equitable to extend the time limit to cover the claimant’s allegations relating to 9th October 2015 and 25th January 2016.

[339]I consider it is just an equitable to extend the time limit to cover the events from 16th October 2018 onwards. That is because even though these are dated, and some of these events involve Ms Melehi who no longer works at the school, the respondent states the claimant’s file contains information going back to 2017 (see page 293).

[340]Furthermore, the allegations that the respondent relied on in the 2022 disciplinary proceedings against the claimant, which resulted in her dismissal, date back to 21st June 2017, a number of these involved Ms Melehi and Ms Ghezzi. Accordingly, the respondent had sufficient information about the earlier events to rely on those events during the 2022 disciplinary proceedings.

[341]Therefore, as to whether the respondent will be prejudiced as a result of the time that has elapsed, in my judgment it will not because it has evidently kept historic records regarding employee conduct. In my judgment, as the respondent relied on historic events in relation to the most recent disciplinary process which led to the claimant’s dismissal, that would support allowing the claimant to rely on allegations going back at least as far as 21st June 2017 (although the earliest of her claims after that date that has succeeded is 16th October 2018).

[342]Another relevant factor is that the claimant contends that she has not always been informed at the time that certain allegations had been made against her, which the respondent’s disciplinary panel accepted had sometimes been the case (see paragraph 47 of Mr Finn’s witness statement). Therefore, the claimant was not fully aware of all the matters which she now relies on in support of her claims. The claimant became aware of the full extent of the allegations during the 2022 disciplinary proceedings, which culminated in her

[343]The complaints in relation to the individual causes of action are as follows:343.1 The earliest finding of direct discrimination is 16th October 2018.

343.2 The earliest allegation of harassment is 16th October 2018; and

343.3 I have found the claimant was not victimised.

[344]Therefore, in all the circumstances, I consider it is just and equitable to extend the period for which the claimant may claim to 16th October 2018. UNFAIR DISMISSAL Was the claimant dismissed?

[345]It is common ground that the claimant was dismissed with effect from 16th February 2023. What was the reason or principal reason for the dismissal? Was it a potentially fair reason?

[346]The claimant states the reason for her dismissal was race, and that the disciplinary process was tainted by race discrimination.

[347]The respondent states the reason for dismissal was some substantial other reason, namely breach of trust and confidence. This is a substantial reason which could potentially justify the dismissal as fair. Whether it did so, is considered below. Did the respondent act reasonably or unreasonably in all the circumstances, including the respondent’s size and administrative resources, in treating that as a sufficient reason to dismiss the claimant? The Tribunal’s determination whether the dismissal was fair or unfair must be in accordance with equity and the substantial merits of the case.

[348]The respondent states the reason or principal reason the claimant is dismissed was because the claimant’s “continued allegation of discrimination suggests that the breakdown in relationships is irreconcilable”. In other words, it had lost trust and confidence in the claimant, which constituted some other substantial reason that justified her dismissal because she had alleged the respondent’s management team was racist, and despite the respondent explaining to her that it had applied its procedures fairly and consistently, she was not prepared to withdraw the remark. And in some circumstances, dismissing an employee who makes a vexatious and malicious allegation of racism could lead to a loss of trust and confidence.

[349]However, despite the investigation report suggesting the allegations may be malicious, the respondent’s disciplinary panel makes no express finding that the claimant’s complaint of racism is malicious or vexatious. Therefore, I conclude it is dismissing her because it considers she has made an illfounded allegation which she is not prepared to withdraw. I find that a reasonable employer in the respondent’s position would not find that justified dismissal. That is because the respondent’s approach could discourage employees with justifiable grounds for claiming discrimination, from complaining, which would undermine their legal protection.

[350]However, for the reasons stated at paragraphs 237 to 240, I have found that the respondent has subjected the claimant to race discrimination which reinforces the illegitimacy of the respondent’s position. That is because, firstly, it is unlawful, and therefore inherently unreasonable, to discriminate against an employee. Secondly, for an employer to dismiss such an employee because they have complained about the employer’s discrimination and refuse to withdraw their legitimate complaint, compounds the ill-treatment. Essentially, it would allow an employer to rely on its own unlawful conduct as grounds to dismiss an employee who complained about its unlawful conduct.

[351]As to the alleged loss of trust and confidence, the claimant maintained that her relationship with the respondent had not broken down irretrievably, and her union representative had suggested mediation as one way forward. However, the respondent’s view is that the relationship had broken down irretrievably. If, as I have found, the claimant’s allegations were wellfounded, and yet she still considered the relationship had not broken down irretrievably, I consider in those circumstances, a reasonable employer would not find trust and confidence was lost, where a justifiably aggrieved employee considered it had not been lost.

[352]The respondent is a London borough council with considerable HR resources, which resources the decision makers have had access to at every stage. Despite these resources, there were numerous and serious deficiencies and procedural irregularities during the disciplinary process, and particularly during the investigation. These are dealt with at paragraphs 203 to 211, 217 to 220, 228 to 235, 262 to 264 and 274 to 277 above.

[353]Taking all these factors into account, the decision to dismiss the claimant was unfair and contrary to equity and the substantial merits of the case. The respondent states the reason for dismissal was the claimant’s misconduct. The claimant states it was race and that the disciplinary process was tainted by race discrimination.

[354]I find the reason or principal reason for dismissal was that the claimant had complained about race discrimination, refused to withdraw that complaint, and the respondent considered the complaint of race discrimination to be meritless, and thus it considered the claimant’s refusal to withdraw the complaint to be misconduct.

[355]I find that misconduct is a potentially fair reason. If the reason was misconduct the tribunal will need to decide whether the respondent genuinely believed the claimant had committed misconduct.

[356]I have taken into account that over an extended period of time the respondent had received numerous allegations from multiple sources, that were broadly consistent in their nature, and which in accordance, with its statutory safeguarding duties, it needed to investigate. I therefore consider it was appropriate that it investigate the allegations, and I consider a reasonable employer would do so in these circumstances.

[357]However, although the decision to conduct the investigation was reasonable, I consider a reasonable panel tasked with conducting the disciplinary hearing would have identified that the investigation was fundamentally flawed for the reasons stated at paragraphs 203 to 211, 217 to 220, 228 to 235, 262 to 264 and 274 to 277, and would not have relied on the investigation report to the extent the disciplinary panel did in this case. Was the respondent’s belief in the claimant’s misconduct genuine?

[358]Ms Iwobi carried out the investigation, following which she advised the respondent to add a fourth allegation: that there had been a loss of trust and confidence between the claimant and the respondent. Mr Finn confirmed during his oral evidence, that the disciplinary panel regarded Ms Iwobi as an expert. I consider that the panel trusted her findings, including her conclusion that the claimant’s allegations of discrimination were unfounded. I also consider that the panel relied on her judgment in recommending the addition of the fourth allegation, believing there were sufficient grounds to do so. Therefore, I find that, in relying on Ms Iwobi’s recommendation, and trusting her judgment, the disciplinary panel genuinely believed the claimant was guilty of misconduct. Were there reasonable grounds for that belief

[359]I consider there were reasonable grounds to investigate the allegations, but I consider that based on the information available at the disciplinary hearing, a reasonable disciplinary panel would have identified the following:359.1 The earlier complaints by and on behalf of the claimant that she was being discriminated against (see paragraphs 67, 100, 106, 142, 170 and 181 above) had not been substantively addressed.

359.2 Ms Amien-Cloete’s comments in the claimant’s 2020/2021 appraisal suggested unconscious race bias.

359.3 The claimant’s refusal to sign the part of her appraisal containing those comments was more likely to be that she found the comments discriminatory, rather than her seeking to change a process that she disagreed with.

359.4 This was the context in which she refused to withdraw her comment that she had been subjected to race discrimination until after the end of the disciplinary process.

359.5 If, notwithstanding a proper consideration of the above matters, it still considered the claimant’s allegation of discrimination was unfounded, a reasonable disciplinary panel would not have concluded there were reasonable grounds to believe this amounted to misconduct, or that it was misconduct that justified dismissal for the reasons stated at paragraphs 349 to 351 above. At the time the belief was formed, did the respondent carry out a reasonable investigation

[360]I do not consider a reasonable investigation was carried out by the respondent. There were multiple and serious deficiencies and irregularities in the investigation process, these are dealt with in more detail above, for instance at paragraphs 203 to 211, 262 to 264 and 274 to 277. I consider a reasonable employer would have identified the inadequacies in the investigation report, but here the disciplinary panel failed to do so, and instead relied on the investigation report. Did the respondent otherwise act in a procedurally fair manner

[361]I have already referred to the procedural irregularities during the disciplinary process, some of the more serious irregularities relate to allegation 4, which was the reason the claimant was dismissed. In summary, the claimant was not informed that there was a fourth allegation during the investigatory stage. Although she was asked during the investigation meeting about whether she considered her relationship with the respondent had broken down (she was not specifically asked about the issue of trust and confidence), she was not informed it was an allegation being relied on against her, or that the allegation could lead to her dismissal. This issue is dealt with in more detail at paragraphs 272 to 275 above. Was dismissal within the range of reasonable responses.

[362]The claimant was not dismissed because of the complaints made about her, instead she was dismissed because she would not withdraw her complaint against the respondent of race discrimination.

[363]I have found some of the claimant’s allegations of race discrimination are made out, therefore I do not consider it is within the range of reasonable responses to dismiss the claimant for making a legitimate complaint about discrimination.

[364]Furthermore, the dismissal letter does not address the reasons why, notwithstanding the claimant’s allegation of discrimination, why that situation could not be addressed by mediation or redeployment to another school within the federation.

[365]In all the circumstances, I consider dismissal was outside the range of reasonable responses. DIRECT DISCRIMINATION

[366]I remind myself that it is insufficient for the claimant to establish that the respondent has done something which amounts to less favourable treatment, but that applying the relevant burden of proof, I also need to be satisfied that the unfavourable treatment was on the grounds of race. On 9 October 2015, Miss Melehi judged the Claimant to be guilty based on Miss Walker’s testimony of an incident that took place on 19th September 2015, before hearing the Claimants version of events.

[367]In the absence of any evidence to the contrary, I have accepted the claimant’s evidence that Ms Melehi accepted Ms Walker’s account of events before speaking with the claimant about what happened.

[368]I find it is less favourable treatment to have believed Ms Walker’s account before hearing from the claimant. However, no evidence has been provided to indicate that Ms Melehi subjected the claimant to this less favourable treatment on the grounds of race. Therefore, I conclude the claimant has failed to discharge the burden of proving there is evidence from which it could be inferred that the less favourable treatment was due to race. On 25 January 2016, Miss Melehi called for a pre-guidance meeting with the Claimant. The Claimant alleges that "other people" including Miss Walker had issues with the Claimant's professional behaviour.

[369]In the absence of any evidence to the contrary, I have accepted the claimant’s evidence that Ms Melehi arrange a pre-guidance meeting because some individuals have issues with the claimant, without identifying for the claimant what the issues are.

[370]I find that calling a pre-guidance meeting without informing the claimant of what issues others had with her behaviour would amount to less favourable treatment. However, no evidence has been provided to indicate that Ms Melehi subjected the claimant to this less favourable treatment on the grounds of race. Therefore, I conclude the claimant has failed to discharge the burden of proving there is evidence from which it could be inferred that the less favourable treatment was due to race. During a meeting with the claimant on 22 June 2018, did Mr Black accuse her of shouting based on Miss Rachel Brett’s report? Did the respondent believe her over the claimant?

[371]I have found the claimant was accused by Mr Black of shouting, and that he preferred Ms Brett’s report over the claimant’s denial of shouting.

[372]I find that Mr Black’s accusation, and preferring Ms Brett’s account, would amount to less favourable treatment.

[373]However, no evidence has been provided to indicate that Mr Black subjected the claimant to this less favourable treatment on the grounds of race. Therefore, I conclude the claimant has failed to discharge the burden of proving there is evidence from which it could be inferred that the less favourable treatment was due to race. At a Guidance Review meeting on 12th July 2018 was the Claimant told different allegations to those Mr Black had told her about on 22nd June 2018?

[374]The allegations discussed at the meeting on 12th July 2018 are set out in Ms Melehi’s letter dated 17th July 2018, which confirms that as well as discussing the playground incident on 19th June 2018, an additional matter relating to a school trip on 2nd July 2018 was also discussed. Therefore, to the extent that an additional matter was discussed, that additional allegation was different because it had not been discussed at the earlier meeting with Mr Black.

[375]I do not find this amounts to less favourable treatment. The 2nd July 2018 school trip post-dates the claimant’s meeting with Mr Black on 22nd June 2018, which explains why it could not be discussed at the earlier meeting. In her letter dated 5th July 2018 Ms Melehi provided advance warning that this matter would be discussed. Although the claimant appears to have resolved this incident directly with Miss Brett, as it related to the protocol around school trips and parent-helpers, it was reasonable for this to be discussed at the guidance meeting that was already scheduled.

[376]Therefore, I find the additional allegation discussed on 12th July 2018 in no way whatsoever was due to the claimant’s race. During a meeting with Miss Ghezzi and Miss Melehi on 20 July 2018, was the claimant accused of being hostile, and denied an opportunity of saying her side of the story?

[377]I have already accepted the claimant’s account of the meeting on 20th July 2018 (see paragraphs 58 to 61 above).

[378]I find this was less favourable treatment, because the claimant’s account, which I accept, is that she was accused of behaving in a hostile manner, she denies this, but wasn’t given an opportunity to provide her account. However, the claimant’s account does not disclose any basis for finding the less favourable treatment was on the grounds of race. Therefore, I conclude the claimant has failed to discharge the burden of proving there is evidence from which it could be inferred that the less favourable treatment was due to race. Did Miss Melehi wish to place the claimant on another 6 week Guidance based on a class teacher allegations during an end of 6 week Guidance Review meeting held on 16th October 2018 based on a class teacher’s allegation.

[379]I have already found that Ms Melehi had initially intended to extend the 6- week guidance review process for the reasons stated at paragraph 71 above, although the issue was later addressed via mediation.

[380]I also find the claimant has discharged the burden of proving that it could be inferred that the original intention to extend the review process was discriminatory. That is because in Mr Taper’s 8th November 2018 e-mail regarding the guidance review meeting, he stated the claimant was being subjected to an inappropriate amount of scrutiny, and that he had never known anyone to be kept in the review process after meeting their targets. These indicate less favourable treatment.

[381]It can also be inferred from Mr Taper’s e-mail that the less favourable treatment was on the grounds of race, because his criticism of Ms Melehi’s attitude towards the claimant during the meeting, includes the allegation that she was stereotyping the claimant, and that her attitude was bullying and harassing. Taken together, I find these discharge the claimant’s burden of proving that there is evidence from which it could be inferred that Ms Melehi’s proposal to extend the guidance review was less favourable treatment on the grounds of race.

[382]Accordingly, the burden of proof shifts to the respondent. However, I find the respondent has failed to discharge the burden of proving that Ms Melehi would have proposed an extension of the review guidance process to a member of staff in the same circumstances as the claimant, but who was not black. I consider Ms Amien-Cloete did not sufficiently address the concerns that Mr Taper raised regarding the initial proposal to keep the claimant in the review guidance process, that according to him this was unheard of, that the claimant was being subjected to a higher level of scrutiny, and that Ms Melehi’s behaviour was bullying and made comments that were stereotyping. Absent an explanation from the respondent, I find it has failed to discharge the burden of proof. Was the Claimant’s requests for regular study time made to SLT denied on 30th October 2019

[383]This assertion is not disputed because it is common ground that the claimant requested study leave, but the respondent did not allow her to take regular study leave.

[384]Ms Amien-Cloete explained that while Ms Currier was allowed study leave, her circumstances were different because her course was not funded by the respondent, and as a teaching assistant, arranging cover for Ms Currier was more straightforward. However, as the claimant was a HLTA, organising cover was more challenging, and where cover was unavailable, the respondent was unable to allow her study leave.

[385]Therefore, while the claimant and Ms Currier were treated differently, I find their circumstances were not the same. I find Ms Amien-Cloete’s explanation is cogent, and demonstrates the decision was based on the respondent’s staffing needs.

[386]To the extent that there was a different in treatment, I do not find it was less favourable treatment. Of if it was less favourable treatment, I consider the claimant has failed to discharge the burden of proving there is evidence from which it could be inferred that the less favourable treatment was due to race. On 13 January 2020, was Miss Ghezzi believed over the Claimant in regards to an incident.

[387]At the time of Ms Ghezzi’s complaint, namely on 13th January 2020, there is no evidence that the respondent preferred Ms Ghezzi’s account. Instead, Ms Amien-Cloete took statements from both Ms Ghezzi and the claimant as part of a broader fact find. Therefore, I conclude the claimant has failed to discharge the burden of proving there is evidence from which it could be inferred that there was less favourable treatment due to race. On 20 January 2020, Mrs Amien-Cloete investigated Mrs Parker when she said a rude comment to the Claimant.

[388]The claimant no longer pursues this allegation. On 2 October 2020, was the Claimant told to mix bubbles during the height of the Covid 19 pandemic with Miss Mardling.

[389]It is common ground that the claimant was told to mix COVID bubbles.

[390]The claimant was at higher risk of COVID due to her ethnicity, which meant swapping her COVID bubble potentially increased that risk yet further.

[391]However, on resuming her HLTA duties, it is reasonable the respondent may wish to reassign her elsewhere given there were fewer HLTAs. Ms AmienCloete’s evidence is that another reason she wanted the claimant and Ms Mardling to swap bubbles was to assign the claimant to older children which better suited her skills, and Ms Mardling was better suited to younger children, which is a legitimate management decision.

[392]While the claimant was likely to be at greater risk from COVID because she is black, there is no evidence whatsoever to indicate that this decision was made because she is black. Furthermore, the school took all relevant precautions to try to mitigate the risk, and Ms Amien-Cloete was open to other safety measures the claimant might propose.

[393]Therefore, I conclude the claimant has failed to discharge the burden of proving there is evidence from which it could be inferred that, if there was less favourable treatment, it was due to race. On 14 October 2020, did the Claimant refuse to sign the HLTA appraisals due to discriminatory comments from Ms Amien-Cloete.

[394]It is not disputed that the claimant refused to sign

[395]I find the claimant has discharged the burden of proving that it could be inferred that advising someone to soften their facial expression, implies they have a hard or possibly even a harsh facial expression, and it could be inferred that the comment reflects unconscious racial bias by reinforcing a stereotype that black people are rude, angry and/or aggressive, and in particular the stereotype of the “angry black woman”.

[396]Combined with the advice that the claimant should avoid towering over children, when the claimant is 5’ 3” tall, reinforces her depiction of the claimant as someone whose demeanour and “resting face” is intimidating to children.

[397]Accordingly, the burden of proof shifts to the respondent. Ms Amien-Cloete’s explanation is that the comments were not discriminatory, but were to advise the claimant regarding her body language when interacting with children. In seeking to show her advice was not due to the claimant’s race, Ms AmienCloete states that this is advice she would give to anyone irrespective of their race, and that she has done so by advising others regarding their body language and tone of voice. However, based on her own evidence, she has not advised others to change their facial expression. Combined with Ms Amien-Cloete’s comments which I have found to indicate racial bias (see paragraphs 118, 142 to 145 and 237 to 240) above, which indicate she regards the claimant’s natural/resting face to be angry and tense, also leads me to conclude Ms Amien-Cloete’s comments are evidence of racial anger bias. Therefore, I find the respondent has failed to prove that this less favourable treatment had nothing whatsoever to do with race. On 3 December 2020, Miss Currier breached safeguarding policies but Ms Amien-Cloete regarded the Claimant to be at fault

[398]The claimant no longer pursues this allegation. On 8 January 2021, Miss Melehi ordered the Claimant to work with child J. He has behavioural difficulties and at times can be violent. No risk assessment was conducted.

[399]The claimant no longer pursues this allegation. On 4 February 2021, the Claimant's reactions to trauma of her injury by Child J, her reaction to the pain was placed on her appraisal as targets that need to be worked on.

[400]I do not consider the claimant’s reaction to the trauma arising from her injury was included in her appraisal as part of her targets. During the meeting on 4th February 2021, Ms Amien-Cloete mentioned the claimant was not making eye contact, and that is a point Ms Amien-Cloete had raised both before and after 4th February 2021. This supports Ms Amien-Cloete’s account that it was general feedback rather than specific to the claimant’s pain reaction during the 4th February 2021 meeting. Therefore, I conclude the claimant has failed to discharge the burden of proving there is evidence from which it could be inferred that there was less favourable treatment due to race. On 15 October 2021, the Claimant was not updated in regards to the course start time by Miss Melehi but Miss Currier and Miss Howell were.

[401]I have found that the course start time did not change, meaning there was no failure to update the claimant. Therefore, I conclude the claimant has failed to discharge the burden of proving there is evidence from which it could be inferred that there was less favourable treatment due to race. On 9 March 2022, the Claimant was suspended from her duties based on an unethical investigation.

[402]I have found that the claimant was suspended from her HLTA duties. As to whether the investigation was unethical, the criticisms I have made of Ms Iwobi’s investigations do not apply here because that hadn’t yet started.

[403]As at 9th March 2022 the respondent had completed the Beech class survey, and I consider the respondent was wrong to interview the whole of Beech class as part of its investigation. That is because a fact find or investigation should be concerned with establishing whether there is sufficient evidence to make a recommendation regarding allegations that have been made. In the course of investigations, information may come out that support additional allegations, but seeking such information should not be the purpose of the investigations. Therefore, any interviews conducted by the respondent should be of individuals who can provide information regarding existing allegations. However, by interviewing a class of 30 who have no direct information regarding Child O’s allegations indicates a search for evidence in order to make additional allegations. In these circumstances, I consider it was unethical to survey the whole class.

[404]I therefore find the way in which this aspect of the investigation was conducted was unethical in that sense it was wrong to interview the whole class. I also consider it amounted to less favourable treatment because it was not the respondent’s standard practice.

[405]I consider there is evidence from which it can be inferred that this was related to race. The respondent had not interviewed an entire class before based on complaints that one or two children in the class had made, yet it decided to do so in this case based on Child O’s allegations. Child O’s allegations lacked credibility, which tends to further support the view that the respondent was seeking to obtain evidence of additional complaints to strengthen the case against the claimant. This could also be seen as subjecting the claimant to a higher level of scrutiny and being more robust when investigating complaints about her compared to investigating complaints about others. These are allegations the claimant has made when complaining about discriminatory treatment.

[406]Accordingly, the burden shifts to the respondent. However, as stated above (see paragraph 173 above), I reject the respondent’s explanation that the claimant had previously agreed that a class wide survey should be conducted during such investigations. Having provided no other reason for departing from its standard practice, it means the respondent has failed to discharge the burden of proving the less favourable treatment had nothing whatsoever to with race.

[407]I find interviewing the whole class based on the allegations of one child would have the effect of creating a hostile environment for the claimant. Considered in the context of the claimant previously alleging that discrimination against her has included closer scrutiny and a more robust approach when complaints are made against her, interviewing Beech class lends support to the claimant’s concerns. On 16 December 2022, the Claimant was informed that her employment at DKH school was terminated.

[408]It is common ground that the claimant was notified of her dismissal by a letter dated 16th December 2022.

[409]Being dismissed is evidently unfavourable treatment. When considering the reason the claimant was dismissed, I also consider it was less favourable treatment on the grounds of race. The claimant made a complaint that she was being discriminated against on the grounds of race. The respondent expressly states it dismissed the claimant because she had complained about race discrimination and she refused to withdraw the complaint. These circumstances show that the less favourable treatment was on the grounds of race. HARASSMENT On 9 October 2015, Miss Melehi judged the Claimant to be guilty based on Miss Walker’s testimony of an incident that took place on 19th September 2015, before hearing the Claimants version of events.

[410]I have found that this factual allegation is proved.

[411]I consider this conduct would be unwelcome, and therefore unwanted.

[412]However, the claimant has failed to adduce any evidence to discharge the burden of proving it could be inferred that the unwanted conduct was related On 25 January 2016, Miss Melehi called for a pre-guidance meeting with the Claimant. The Claimant alleges that "other people" including Miss Walker had issues with the Claimant's professional behaviour. The issues were not identified by Miss Melehi.

[413]I have found that this factual allegation is proved.

[414]I consider this conduct would be unwelcome, and therefore unwanted.

[415]However, the claimant has failed to adduce any evidence to discharge the burden of proving it could be inferred that the unwanted conduct was related During a meeting with the claimant on 22 June 2018, did Mr Black accuse her of shouting based on Miss Rachel Brett’s report? Did the respondent believe her over the claimant?

[416]I have found the claimant was accused by Mr Black of shouting, and that he preferred Ms Brett’s report that the claimant shouted, over the claimant’s denial of shouting.

[417]I also find that Mr Black’s accusation was unwanted, as would be him preferring Ms Brett’s account over the claimant’s.

[418]As stated at paragraphs 372 to 373 above, I consider the claimant has failed to adduce any evidence to discharge the burden of proving it could be inferred that the unwanted conduct was related to race. At a Guidance Review meeting on 12th July 2018 was the Claimant told different allegations to those Mr Black had told her about on 22nd June 2018?

[419]I have already found that the respondent discussed an additional allegations at the meeting on 12th July 2018, so to that extent, the discussion was different.

[420]Nonetheless, to the extent that the allegations discussed on 12th July 2018 differed from the allegation discussed on 22nd June 2018, I have considered whether this was unwanted conduct. From the claimant’s perspective it was, because an additional allegation that had not previously been discussed would be unwelcome, and therefore unwanted.

[421]I do not consider the difference between the allegations discussed on 22nd June and 12th July 2018 was related to the claimant’s race. The claimant has failed to adduce any evidence to discharge the burden of proving it could be inferred that the unwanted conduct was related to race. I consider the difference in the discussion was because the additional allegation post-dated the claimant’s earlier meeting with Mr Black, and it was a matter that it was reasonable to wish to discuss at a meeting that had already been scheduled.

[422]Therefore, I consider the claimant has failed to adduce any evidence to discharge the burden of proving it could be inferred that the unwanted conduct was related to race. During a meeting with Miss Ghezzi and Miss Melehi on 20 July 2018, was the claimant accused of being hostile, and denied an opportunity of saying her side of the story?

[423]As stated at paragraph 58 to 61 above, I accept the claimant’s account that during the meeting on 20th July 2018 she was accused of being hostile and denied an opportunity of giving her account.

[424]I have also accepted the claimant’s evidence that the accusation was false, which I find is unwanted conduct, as would be denying her the opportunity of responding to the false allegation.

[425]However, even accepting the claimant’s account, which I have done, she has provided no evidential basis on which it could be inferred that the unwanted conduct was related to her race. Did Miss Melehi wish to place the claimant on another 6 week Guidance based on a class teacher’s allegations during an end of 6 week Guidance Review meeting held on 16th October 2018 based on a class teacher’s allegation.

[426]I have found Ms Melehi did wish to extend the claimant’s 6-week guidance review based on a teacher’s allegations, although the issue was later addressed via mediation.

[427]For the reasons stated at paragraph 71 above, I consider Ms Melehi’s intended approach was unwanted conduct.

[428]I also find the claimant has discharged the burden of proving that it could be inferred that the original intention to extend the review process was discriminatory. That is because in Mr Taper’s 8th November 2018 e-mail regarding the guidance review meeting, he stated the claimant was being subjected to an inappropriate amount of scrutiny, and that he had never known anyone to be kept in the review process after meeting their targets. These indicate less favourable treatment.

[429]It can also be inferred from Mr Taper’s e-mail that the less favourable treatment was on the grounds of race, because his criticism of Ms Melehi’s attitude towards the claimant during the meeting, includes the allegation that she was stereotyping the claimant, and that her attitude was bullying and harassing. Taken together, these discharge the claimant’s burden of proving that there is evidence from which it could be inferred that Ms Melehi’s proposal to extend the guidance review was less favourable treatment on the grounds of race.

[430]I consider Mr Taper’s description of the meeting, which he attended, depicts an environment which was hostile towards the claimant. In particular, his depiction of Ms Melehi as bullying and harassing fits that description, as does Ms Melehi’s stereotyping the claimant. I also consider it would be intimidating for the claimant to have a member of the senior management team treat her in such a way. Was the Claimant’s requests for regular study time made to SLT denied on 30th October 2019

[431]As stated, this assertion is not disputed.

[432]I accept the claimant would have found the refusal to grant her regular study leave to be unwelcome, and therefore, unwanted.

[433]For the reasons stated above, I consider the claimant has failed to adduce any evidence to discharge the burden of proving it could be inferred that the unwanted conduct was related to race. On 13 January 2020, was Miss Ghezzi believed over the Claimant in regards to an incident.

[434]At the time of Ms Ghezzi’s complaint, namely on 13th January 2020, there is no evidence that the respondent preferred Ms Ghezzi’s account. Instead, Ms Amien-Cloete took statements from both Ms Ghezzi and the claimant as part of a broader fact find. Therefore, I consider the claimant has failed to adduce any evidence to discharge the burden of proving it could be inferred that this was unwanted conduct related to race. On 13 February 2020, the Claimant was suspended from her duties 30 minutes after Mrs Amien-Cloete spoke to LADO.

[435]As stated at paragraph 93 above, I find the claimant was suspended from some of her duties, but was not suspended from her job, and also found this did not happen 30 minutes after Ms Amien-Cloete contacted LADO.

[436]I consider the claimant has failed to adduce any evidence to discharge the burden of proving it could be inferred that there was unwanted conduct related to race. On 24 February 2020, the Claimant was suspended from her duties

[437]This appears to have been included in the list of issues as an error, and is not dealt with by the parties in their closing submissions. On 30 April 2020 did the respondent fail to give the Claimant full questions to enable her to answer accurately for the follow up investigation.

[438]I find that the questionnaire e-mailed to the claimant on 30th April 2020 contained a general question, and that despite her request for specific information regarding that allegation, particulars were not provided.

[439]I find that this was unwanted conduct in that the claimant legitimately requested clarification regarding certain allegations, so evidently wanted that information. To be met with no response was therefore unwanted.

[440]Even on the claimant’s account, which is not challenged, I see no evidential basis for concluding the respondent’s failure to provide the requested information was related to race. It is good practice to provide sufficient detail, and it is a requirement of the respondent’s disciplinary policy. However, I burden of proving it could be inferred that the unwanted conduct was related On 13 July 2020, the Claimant highlighted that there had been an unethical investigation process (disciplinary part 1). On 21 September 2020, the Claimant highlighted that there had been an unethical investigation process (disciplinary part 2).

[441]This has been dealt with by the parties as an issue about whether or not the investigation process was unethical.

[442]When dealing with the claimant’s appeal against the Stage 2 Written Warning, the respondent acknowledged that sometimes the claimant may not have been notified regarding complaints (see page 377). The claimant’s oral evidence is that it was this failure to notify her about allegations that made the investigation unethical.

[443]The claimant refers to this as unethical, so evidently considers it unwanted.

[444]There is no evidence that the failure to notify the claimant of allegations at the time complaints were made was related to race. However, I consider the claimant has failed to adduce any evidence to discharge the burden of proving it could be inferred that the failure to notify her of allegations was unwanted conduct related to race. On 2 October 2020, was the Claimant told to mix bubbles during the height of Covid 19 pandemic with Miss Mardling.

[445]I have already found that the claimant was told to mix bubbles.

[446]I also accept that the claimant was at greater risk from COVID-19, and so would have regarded swapping bubbles as unwanted, as illustrated by her e-mail exchanges with Ms Amien-Cloete.

[447]I consider the reasons stated at paragraphs 391 to 392 apply equally here, which undermine any assertion that the decision was related to race. Therefore, I consider the claimant has failed to adduce any evidence to conduct related to race. On 7 October 2020, the Claimant sent a letter of appeal regarding breaches in employment and safeguarding policies.

[448]This has been dealt with by the parties as an issue about breaches of employment and safeguarding policies, which the claimant raised in her letter of appeal.

[449]It is common ground that the claimant submitted an appeal against the outcome of the disciplinary hearing which included allegations that the respondent had breached various policies.

[450]I concluded at paragraph 114 above, that I found there were some breaches of employment policies, where the respondent failed to provide sufficient detail regarding some allegations. If so, was this unwanted conduct?

[451]The claimant repeatedly complained that the respondent breached employment policies by failing to provide her with sufficient detail about complaints against her. Therefore, I find the respondent’s failure on this occasion would be unwelcome, and so unwanted.

[452]I consider the claimant has failed to adduce any evidence to discharge the burden of proving it could be inferred that the unwanted conduct related to On 14 October 2020, the Claimant did not sign the HLTA appraisals due to discriminatory comments from Ms Amien-Cloete.

[453]It is common ground that the claimant did not sign her 2020/2021 appraisal because it included a target to, amongst other things, display “soft facial expressions”. The claimant says she found this comment to be discriminatory.

[454]It is also not disputed that the claimant found the comments discriminatory, and therefore unwanted, which is why she refused to sign that part of her appraisal form.

[455]I note that the respondent’s closing submissions maintain that Ms AmienCloete’s comments were to provide advice to the claimant regarding her body language, but I find that these comments, reflect negative racial stereotyping, in particular racial anger bias and misattributing anger to the claimant. My reasons are set out at paragraphs 118, 142 to 145 and 237 to 240 above.

[456]I have no reason to doubt Ms Amien-Cloete’s evidence that her purpose in advising the claimant to display a soft facial expression was to advise her in how to interact with children.

[457]However, it is evident from the claimant’s e-mails to Ms Amien-Cloete that she found the comment offensive, and that she felt strongly about it, so much so that by refusing to sign her appraisal she did not receive her annual pay increment.

[458]From an objective perspective, I consider the comment was offensive, and was capable of violating the claimant’s dignity, notwithstanding the high threshold for such a finding. That is because misattributing anger to black people reinforces a stereotype of the “angry black woman” trope that the claimant referred to in at least one e-mail to Ms Amien-Cloete. It also reflects into a misconception that black people are aggressive and/or intimidating. On 3 December 2020, Miss Currier took a child away from the class the Claimant was covering. However Mrs Amien-Cloete blamed the Claimant

[459]I have found that Ms Currier did not remove the child from the line, accordingly the claimant has failed to adduce any evidence to discharge the burden of proving it could be inferred that this was unwanted conduct related On 8 January 2021, Miss Meheli ordered the Claimant to work with child J. He has behavioural difficulties and at times can be violent. No risk assessment was conducted.

[460]The above assertion is not challenged

[461]It is evident from the e-mails the claimant and Ms Amien-Cloete exchanged about this that the claimant did not want or welcome this assignment.

[462]The reasons stated at paragraphs 126 to 128 above apply equally here. Therefore, I consider the claimant has failed to adduce any evidence to conduct related to race. On 15 January 2021, the appeal was upheld. The panel were aware of the Claimants evidence of prejudiced investigations and outcomes.

[463]It is common ground that the claimant’s appeal was brought on the grounds that she challenged the investigations and the outcomes.

[464]The respondent acknowledged certain shortcomings with the investigation, namely that the claimant was not always informed of complaints as and when they were made. However, the respondent concluded the disciplinary panel’s decision should be upheld on appeal.

[465]This was an unwanted outcome, in that the claimant inevitably sought to have the original decision set-aside or altered on appeal.

[466]I consider the manner in which the respondent sought to clarify the specific matters the claimant was challenging on appeal, and its responses to those challenges were fair. As stated, it acknowledged certain shortcomings. Therefore, in all the circumstances, I consider the claimant has failed to adduce sufficient evidence to discharge the burden of proving it could be inferred that upholding the decision was unwanted conduct related to race. On 3 February 2021, after the Claimant was injured by child J, Mrs Amien- Cloete completed and sent off the injury at work form, without speaking to

[467]The claimant no longer pursues this allegation. On 4 February 2021, the Claimant's reactions to trauma of her injury by Child J, her reaction to the pain was placed on her appraisal as targets that need to be worked on.

[468]I do not consider the claimant’s reaction to the trauma arising from her injury was included in her appraisal as part of her targets. During the meeting on 4th February 2021, Ms Amien-Cloete mentioned the claimant was not making eye contact, and that is a point Ms Amien-Cloete had raised both before and after 4th February 2021. This supports Ms Amien-Cloete’s account that it was general feedback rather than specific to the claimant’s reaction during the 4th February 2021 meeting. Therefore, I consider the claimant has failed to adduce any evidence to discharge the burden of proving it could be inferred that this was unwanted conduct related to race. On 14 July 2021, the Claimant did not sign the HLTA appraisals due to discriminatory comments from Ms Amien-Cloete.

[469]It is common ground that the claimant’s 2020/2021 appraisal included a target to, amongst other things, display “soft facial expressions”

[470]It is also not disputed that the claimant found the comments unwelcome, and thus refused to sign that part of her appraisal form.

[471]I note that the respondent’s closing submissions maintain that Ms AmienCloete’s comments were to provide advice to the claimant regarding her body language, but I find that these comments, reflect negative racial stereotyping, in particular racial anger bias and misattributing anger to the claimant. My reasons are set out at paragraphs 118, 142 to 145 and 237 to 240 above.

[472]As stated above, I do not consider Ms Amien-Cloete’s purpose was to create an offensive work environment, but for the reasons stated at paragraph 456 to 458 above, I consider that the effect of her comments were to create a work place that was hostile and that violated the claimant’s dignity. On 15 October 2021, the Claimant was not updated in regards to the course start time by Miss Melehi but Miss Currier and Miss Howell were.

[473]I have found that the course start time did not change, meaning there was no failure to update the claimant. Therefore, I consider the claimant has failed to adduce any evidence to discharge the burden of proving it could be inferred that this was unwanted conduct related to race. On 4 March 2022, the Claimant stated the breaches of the Equality Act 2010

[474]The claimant no longer pursues this allegation. On 7 March 2022, Mrs Amien-Cloete informed the Claimant, that the matter would be escalated

[475]I have found that the e-mail Ms Amien-Cloete sent on 7th March 2022 did not inform the claimant that the matter was being escalated. Therefore, I burden of proving it could be inferred that this was unwanted conduct related 8 March 2022, Child O's class was interviewed and the results were sent to LADO, without informing the Claimant what the allegations were.

[476]The respondent’s closing submissions rely on Ms Amien-Cloete’s e-mail to the claimant sent on 7th March 2022. However, while that e-mail explains Child O’s class had been interviewed, and that Ms Amien-Cloete had contacted LADO, it does not inform the claimant that the results would be sent to LADO, nor does it inform the claimant what the allegations were. Therefore, I find the respondent failed to provide the information as alleged.

[477]I consider the claimant would want to receive as much information as possible, including being notified of the allegations that were being sent to LADO. It follows, the respondent’s failure to do that would be unwanted.

[478]There is no evidence that Ms Amien-Cloete’s failure to update the claimant was related to race. Ms Amien-Cloete had e-mailed the claimant an update on 7th March 2022 which in my judgment kept the claimant sufficiently informed about what was happening. Therefore, I consider the claimant has failed to adduce any evidence to discharge the burden of proving it could be inferred that Ms Amien-Cloete sending the results to LADO without first informing the claimant was related to race. I find it’s more likely Ms AmienCloete simply considered a further update was not required. On 9 March 2022, the Claimant was suspended from her duties based on an unethical investigation.

[479]I find that the claimant was not suspended from her job, but instead her HLTA duties were suspended. As to whether the investigation was unethical, the criticisms I have made of Ms Iwobi’s investigations do not apply here because that hadn’t yet started.

[480]As at 9th March 2022 the respondent had completed the Beech class survey, and I consider the respondent was wrong to interview the whole of Beech class as part of its investigation. That is because a fact find or investigation should be concerned with establishing whether there is sufficient evidence to make a recommendation regarding allegations that have been made. In the course of investigations, information may come out that support allegations, but seeking such information should not be the purpose of the investigations. Therefore, any interviews conducted by the respondent should be of individuals who can provide information regarding existing allegations. However, by interviewing a class of 30 who have no direct information regarding Child O’s allegations creates an impression of looking for evidence in order to make additional allegations. Therefore, I consider it was unethical to survey the whole class.

[481]The claimant found the class survey unwelcome, and found it to be consistent with her repeated allegations that she was subjected to a higher level of scrutiny, and that there was greater rigour when it came to investigating complaints made against her, compared to when complaints were made about her colleagues.

[482]I consider there is evidence from which it can be inferred that this was related to race. The respondent had not interviewed an entire class before based on complaints that one or two children in the class had made, yet it decided to do so in this case based on Child O’s allegations. Child O’s allegations lacked credibility, which further supports the conclusion that the respondent was seeking to obtain evidence of additional complaints to strengthen the case against the claimant.

[483]Accordingly, the burden shifts to the respondent. However, the respondent’s explanation for taking this course is that the claimant suggested the class is interviewed, but I do not accept the claimant made that suggestion (see paragraph 173 above).

[484]I find interviewing the whole class based on the allegations of one child would have the effect of creating a hostile environment for the claimant. Considered in the context of the claimant previously alleging that closer scrutiny and a more robust approach when complaints are made against her, interviewing Beech class lends support to the claimant’s concerns. On 4 May 2022, a table of concerns was sent by Mrs Henley. There were allegations dated from 2017 and ones the Claimant did not know about.

[485]It is common ground that Dr Henley sent the safeguarding chronology to the claimant on 4th May 2022. The claimant has consistently maintained that she was not told about some complaints as and when they happened, and in December 2022 the disciplinary panel found on occasion that was the case, stating that for operational reasons it was not always practical to do so.

[486]I do not find Dr Henley sending the safeguarding chronology to be unwanted, in fact the reverse is true, the claimant had persistently complained about the failure to notify her of complaints. By clearly setting out the complaints relied on, the chronology addressed this issue the claimant had complained of.

[487]However, the claimant was displeased that some of the allegations dated back to 2017, and had been the subject of the earlier disciplinary or other actions such as guidance review meetings. She was also concerned that some matters were raised which she had not previously been informed about. Therefore, these aspects of the respondent’s conduct were unwanted.

[488]I do not consider the unwanted conduct was related to race. The option of revisiting historic matters may be relevant when considering if there has been a pattern of misconduct, was part of the allegations notified to the claimant in the letter from Dr Henley dated 13th March 2022. Where safeguarding concerns have been raised, it is important that they are considered in the light of all available and relevant information, which is consistent with the KCSiE policy, indicating this approach was not related to

[489]As to the failure to sometimes inform the claimant of complaints as they were reported, I consider the claimant has failed to adduce any evidence to conduct related to race. There were evidently numerous occasions when the claimant was informed, these would be followed by guidance review meetings, or in 2020 by taking disciplinary action. This supports a conclusion that on the occasions the claimant was not informed, it was because, as the respondent maintains impractical to do so at that time. On 14 October 2022, the Claimant was suspended from the school in front of children and staff.

[490]It is common ground that on 14th October 2022 the claimant was suspended for four days, and I have found this was done in front of children and staff.

[491]Being suspended in front of staff and children would have been unwanted and unwelcome.

[492]I find it was inappropriate to suspend the claimant in front of others, however, I consider the claimant has failed to adduce any evidence to discharge the burden of proving it could be inferred that this was related to race. In the absence of any such evidence, I consider a lack of judgment is a more likely explanation. On 20 October 2022, the Claimant was formally suspended and was instructed to make arrangements to clean out her locker and hand back her school pass.

[493]It is common ground that the claimant was suspended on 20th October 2022.

[494]While a suspension is not a sanction, and the claimant was informed of that, I consider that from her perspective this was unwelcome, and therefore unwanted.

[495]The allegations were numerous and cumulatively serious, so from a safeguarding perspective, it was appropriate to suspend the claimant until the allegations were determined at the disciplinary hearing. I consider that would be a likely course of action in any case where there was a similar number and type of allegations. Therefore, I consider the claimant has failed to adduce any evidence to discharge the burden of proving it could be inferred that this was related to race. On 15 November 2022, the Claimant was told that there would be a disciplinary hearing on 6 December 2022.

[496]This is accepted by both parties.

[497]The claimant considers that the matter being referred to a disciplinary hearing was unwelcome, and to that extent it is unwanted

[498]Did it relate to race?

[499]Again, the nature of the allegations meant it was reasonable to progress the matter to a disciplinary hearing. I also consider it’s likely that due to the number and type of allegations, the respondent would make the same decision in other cases, irrespective of the employee’s race. Therefore, I burden of proving it could be inferred that the decision to progress this matter to disciplinary action was related to race. On 16 December 2022, the Claimant was informed that her employment at DKH school was terminated.

[500]This is not disputed, and is the basis of the claimant’s claim for unfair

[501]The dismissal was unwelcome, and therefore amounts to unwanted conduct.

[502]I consider the claimant’s dismissal was related to her race because the respondent expressly states it dismissed the claimant because she had complained about race discrimination and she refused to withdraw the complaint. In particular the claimant was subjected to negative stereotyping as a result of unconscious racial bias. When she complained about this racial discrimination, and refused to withdraw the allegation of racism, she was dismissed (see also paragraphs 359.1 to 359.5 above).

[503]I consider dismissing someone for reasons related to that person’s race would be offensive and create a hostile environment. I have seen no evidence to indicate that was the respondent’s purpose, nonetheless, I find that would have been the effect of dismissing the claimant. This is dealt with at paragraphs 456 to 458 above. On 12 January 2023, the Claimant emailed her appeal submission, stating that she did not want her job back and the reasons why.

[504]Although this is not disputed that the claimant submitted her appeal submissions stating she did not want her job back and why, because it describes the claimant’s conduct, not the respondent’s, it cannot be conduct by the respondent that constitutes harassment. On 22 February 2023, the school delayed significantly in response to the Claimant and her appeal.

[505]I have found that there was a significant delay in responding substantively to the claimant regarding her appeal, and in fact she first received a substantive response after the date an appeal would ordinarily be heard.

[506]I consider this was unwanted conduct, the claimant had consistently complained of the respondent’s failure to comply with its policies and procedures, and this delay was outside the standard timescales for dealing with appeals.

[507]I have seen no evidence from which it could be inferred that the delay was due to the claimant’s race, so I accept Dr Henley’s explanation of the delay. In particular, I accept that the school working towards achieving full academy status at the same time, would have contributed to this delay. On 26 April 2023, the Claimant emailed her concerns regarding the appeal, to Miss Moussa and Mrs Henley.

[508]It is not disputed that the claimant e-mailed concerns to Ms Moussa and Dr Henley on 26th April 2023. However, because this describes the claimant’s conduct, not the respondent’s, it cannot be conduct by the respondent that constitutes harassment. VICTIMISATION Allege discrimination in two emails to Mary Henley on 7 November 2020 and 16 November 2020.

[509]When e-mailing Dr Henley regarding her appeal in November 2020 the claimant stated biased judgments had been made against her, and that the disciplinary process did not reflect a commitment to tackling discrimination and applying equality principles to all.

[510]Ms Anderson argues that the claimant doesn’t make either an express or implied allegation of discrimination. However, the claimant does use the terms “bias” and “prejudice”, which I consider are terms similar to discrimination. I also consider the claimant’s allegations, particularly as they are raised as part of her appeal, they are doing something for the purposes of, or in connection with, the Equality Act and/or alleging the respondent has contravened the Act. The claimant responded on 4 March 2022 that the treatment she received was racial discrimination based on the handling of child O investigation (paragraph 42 in the Scott Schedule).

[511]According to Ms Anderson, this e-mail is not part of the documentary evidence, but she confirms the respondent accepts that sending the e-mail is a protected act. The claimant submitted a complaint via email on 11 March 2022 outlining what took place in regard to racial discrimination victimisation bullying and harassment (Paragraph 47 in the Scott Schedule).

[512]This e-mails at pages 688 to 691 of the bundle. The respondent accepts this is a protected act. The claimant emailed Ms Amien Cloete on 5 March 2022 about the child O allegation and the email also stated that the treatment she received was racial discrimination (Paragraph 43 in the Scott Schedule).

[513]This e-mail (see paragraph 170 above) is at pages 665 to 666 of the bundle. The respondent accepts this is a protected act. On 22 February 2023 the claimant sent an email complaint outlining discrimination victimisation bullying and harassment (Paragraph 56 in the Scott Schedule).

[514]No page reference is given for this e-mail in the chronology relating to an e-mail sent by the claimant on 22nd February 2023, it is not on the index, and I cannot find it in any of the bundles. In her closing submissions, when dealing with this issue, the claimant refers to her appeal request dated 12th January 2023, which I note refers to bullying and harassment. I therefore conclude that the claimant did not send an e-mail on 22nd February 2023, or if she did, without seeing the e-mail, I am not satisfied the claimant has discharged the burden of proving any e-mail sent amounted to a protected act. 8 January 2021 - Miss Melehi ordered the claimant to be child J’s 1:1 with no risk assessment

[515]I have already found that Ms Melehi did order the claimant to provide 1:1 support to Child J without a risk assessment being carried out. By doing so, did it subject the claimant to detriment?

[516]This did subject the claimant to detriment because on 1st February 2021 Child J injured the claimant. If so, was it because the claimant did a protected act, the respondent believed the claimant had done, or might do, a protected act?

[517]I do not consider the claimant has discharged the burden of proving that the detriment she was subjected to was because she did a protected act because no evidence has been provided indicating Ms Melehi ordering the claimant to provide 1:1 support was because she had done or the respondent believed she had done or might do a protected act. On 9 January 2021 – Ms Amien Cloete stated via email that it would be considered insubordination if the claimant did not work with child J. The claimant was injured by child J on 1 February 2021 whereby the child repeatedly slammed a door on her arm.

[518]I have found that Ms Amien-Cloete’s e-mail did not state it would be considered insubordination if the claimant refused to support Child J. Nonetheless, I have found that the claimant was injured by Child J. By doing so, did it subject the claimant to detriment?

[519]I consider the claimant was subjected to detriment as a result of Child J injuring her on 1st February 2021. If so, was it because the claimant did a protected act, the respondent believed the claimant had done, or might do, a protected act?

[520]The detriment the claimant was subjected to was the injury inflicted by Child J, which I do not consider was inflicted because the claimant had done or the respondent believed the claimant had or might do a protected act. In any event, the respondent is not vicariously liable for Child J’s actions. On 5 March 2022 the claimant emailed Ms Amien Cloete raising concerns over what took place the previous day concerning child O allegation.

[521]Because this describes the claimant’s conduct, not the respondent’s, it cannot be conduct by the respondent that constitutes victimisation. On 8 March 2022 Mrs Amien Cloete sent the claimant an email that the information obtained from Beech Class year 3 on 7 and 8 March 2022 was sent to LADO

[522]I have already found that Ms Amien-Cloete e-mailed the claimant in the terms outlined above. By doing so, did it subject the claimant to detriment?

[523]However, I find Ms Amien-Cloete was merely providing an update, and I do not consider that by updating the claimant, Ms Amien-Cloete was subjecting the claimant to detriment. On 26 April 2023 the claimant emailed Miss Moussa (HR manager) raising concerns. Ms Henley emailed the claimant to say she would in touch on 3 May 2023, but the claimant received no response from Ms Henley until 26 June

[524]The claimant no longer pursues this allegation.

CONCLUSION

[525]In light of my findings that the claims for unfair dismissal, direct race discrimination and harassment related to race succeed, there will be a remedy hearing in due course. Directions for that remedy hearing will be issued separately. Approved by: