Ms K LabinjoMr M L WoodIn person for claimantMr E Gold (instructed by Counsel) for respondentDate 5 August 2019
JUDGMENT
The unanimous judgment of the Employment Tribunal is that:[1]The Claimant’s claim for direct discrimination because of her race contrary to the Equality Act 2010 fails and is dismissed.[2]The Employment Tribunal does not have jurisdiction to decide the claim for breach of contract and that claim is also dismissed.
REASONS
[1]The Claimant was engaged to teach French for 3 hours on Saturday mornings by the Respondent charity. She worked 2 Saturdays in September 2018 before the engagement was terminated by the Respondent on 27 September 2018.[2]By a claim form presented on 4 November 2018, the Claimant brought complaints of race discrimination and breach of contract (loss of notice). The claim is essentially 1 of 12 about the reason for the termination of the contract: was it the Claimant’s competence and/or conduct or was it because of her race?
The issues
[3]The parties clarified the issues between them at a Preliminary Hearing held before Employment Judge Moor on 11 April 2019. The issues to be determined at this full hearing are as follows: Direct Race Discrimination: Section 13 Equality Act3.1 Was the Claimant an employee or worker; or was she an independent contractor?3.2 If the Claimant was an employee or worker was the termination of the Claimant’s contract less favourable treatment, i.e. by the termination, did the Respondent treat the Claimant less favourably than it treated or would have treated others (comparators) in not materially different circumstances? The Claimant relies on the following comparators Angela Balogh and/or a white teaching assistant of a FLE class; the white teacher who taught her class before she did; and hypothetical comparators.3.3 If so, was this because of the Claimant’s race, namely that she is black? The Claimant will rely on the following particulars:3.3.1 she denies the alleged reasons for dismissal and contends that the true reason was that she is black;3.3.2 one of the alleged reasons for the termination was the Respondent contention that her English was not good enough. In this respect the Claimant compares herself to Ms Balogh, a Director of the Respondent, who she contends had the same or not materially different standard of English as the Claimant;3.3.3 a white female teaching assistant of FLE who is still working for the Respondent told the Claimant that for several years she had been asked by the school to work as a teacher even though she had no qualifications. But in the Claimant’s case Mrs Rimbon, a Director of the Respondent, asked the Claimant a lot of questions about her own qualifications and certificates and was unpleasant about this during her employment;3.3.4 the school offers several kinds of lessons, including a class teaching children whose first language is French. If it was the case that the Claimant’s English was poor then she could have been offered this class because some white teachers had left it;3.3.5 the white teacher of the class the Claimant took, who had taken the class just before her, did not have any qualification in ‘FLE’ whereas the Claimant had this qualification. 2 of 123.4 The Respondent was given leave to amend its Response to make a positive case about the further particulars which were provided orally at the Preliminary Hearing and duly served an Amended Response. Breach of contract3.5 Was the Claimant an employee?3.6 If so, to how much notice was the Claimant entitled? The Claimant argues that under the contract it was one month.3.7 Did the Claimant fundamentally breach the contract of employment by an act of gross misconduct and/or did the Claimant commit any material breach of the contract, and/or act negligently, and/or in a manner that seriously harmed the reputation of the Respondent and/or in a way that was inconsistent with its disciplinary rules. The Respondent relied on the matters set out at paragraphs 9 – 11 of its (unamended) Response.3.8 As to damages: has the Claimant suffered any loss in the notice period. The Respondent will rely on its lack of contractual obligation to provide paid work in the notice period. Remedy3.9 If the Claimant succeeds, in whole or part, the Tribunal will be concerned with issues of remedy and in particular, if the Claimant is awarded compensation and/or damages, will decide how much should be awarded in particular in relation to:3.9.1 loss of earnings and whether the Claimant has made reasonable efforts to find equivalent work;3.9.2 injury to feelings.
The hearing
[4]The Claimant represented herself at the final hearing as she has done throughout these proceedings. The Respondent was represented by Mr Gold. The hearing was listed to take place on Thursday, 18 July and Friday, 19 July 2019. On Wednesday, 17 July the Employment Tribunal office left voicemail messages for both parties asking whether they would be available if the hearing dates were moved to Friday, 19 July and Monday, 22 July, this was followed up by an email from the listing officer at 9.10 in the morning. The Respondent’s solicitor responded at 9.43 a.m. to state that their Counsel would not be available on Monday 22 July and nor was one of the Respondent’s witnesses. The solicitor followed that up with a further email once he had reached his office, again confirming that it would not be possible for the witness to attend on the Monday and asking that the hearing not be moved. No response was received from the Claimant. As a result of the Respondent’s solicitor’s emails, the listing officer left voicemail messages for the Respondent and the Claimant informing them that the case would be beginning on 18 July at 10 a.m. 3 of 12[5]Mr Gold attended the Tribunal on 18 July together with three witnesses for the Respondent. The Claimant did not attend. The Employment Judge asked the clerk to ring the Claimant to find out if she was on her way to the Tribunal and a message was left on the Claimant’s mobile number asking that she contact the Tribunal office to confirm whether she would be attending the hearing: no response was received. The Tribunal was one wing member short, hence the listing officer’s attempts to move the hearing, however there was the possibility of going ahead with a panel of two, subject to the agreement of the parties. The hearing did not proceed on 18 July due to the Claimant’s non-attendance. The Employment Judge asked the clerk to telephone and email the Claimant to confirm that the hearing would proceed on Friday, 19 July at 10 a.m. The Claimant attended on 19 July as did Mr Gold and the Respondent’s three witnesses. The tribunal panel was completed by the presence of a second lay member.[6]Unfortunately, the hearing was unable to get underway at 10 o’clock due to the late arrival of the interpreter, who had been sufficiently unwell as to attend her GP’s in the morning; she did however attend the tribunal at 11a.m and confirmed that she was well enough to proceed. The Claimant and the interpreter confirmed that they could understand each other and the hearing got underway at 11.20 a.m. The Employment Judge explained the order of proceedings to the Claimant and informed the parties and the interpreter that they should let the Tribunal know if they needed additional breaks There was a discussion about making arrangements for continuing the hearing the following week and the availability of witnesses. Despite taking a shorter than usual lunch break the Claimant’s evidence was not concluded until 4:20p.m.[7]At the start of the hearing on Friday 18 July the Claimant was asked to explain why she had not attended on the previous day, Thursday 17 July, she told the Tribunal that the hearing had been cancelled and referred to the email from the listing officer; during the exchange with the Employment Judge the Claimant accused the Employment Judge of not being able to read and commented that the Judge was not doing her any favours by not proceeding on Thursday, or in trying to arrange for the hearing to proceed the following week . This interchange was described by Mr Gold in his submissions as displaying exceptional rudeness on the part of the Claimant. Once the hearing got underway however the Claimant appeared to calm down.[8]The Claimant had not brought copies of the Respondent’s witness statements with her: she confirmed that she had received them in June but stated that she had not read them. Copies of the witness statements were provided to the Claimant, The Employment Judge suggested that she take time over the weekend to read them and prepare questions to ask the witnesses including putting her account to them where she disputed their evidence. At the resumed hearing the Claimant told the Tribunal she had prepared questions on her computer but her computer had crashed over the weekend, however she had handwritten notes of questions with her which were crossreferenced to pages in the bundle.[9]At the end of the first day of evidence it was agreed that the hearing would continue on Tuesday 23 July but with two of the Respondent’s witnesses giving their evidence by video link. The Claimant indicated that she had a professional engagement from 4 o’clock on the Tuesday. The Tribunal arranged to start at 9.30 a.m. in order to assist in completing the evidence and any summing up within that time however the 4 of 12 Claimant was informed that she would need to be present and should consider whether she needed to make alternative arrangements for her professional engagement.[10]The Tribunal and parties attended on Tuesday, 22 July at 9:30am however the interpreter (a different interpreter on this occasion) was not present and did not arrive until 11 o’clock. On her arrival the interpreter spoke to the Claimant and they confirmed they understood each other. The tribunal again took a shorter lunch break and sat until 5 o’clock to conclude the evidence and submissions. During the course of the hearing additional documents were handed up and added to the bundle (at 54a to c) and the Tribunal Clerk was asked to print and make copies of a further document produced by the Claimant (a version of the Claimant’s CV).[11]The Respondent’s witnesses were Agnes Balogh, Yanick Rimbon and Sonia Marguin.[12]Ms Balogh, who had had to return to Brussels, and Ms Rimbon, who was unable to attend the tribunal due to other engagements, gave their evidence via a video link set up over a Skype connection. Unfortunately during the course of the afternoon, the air conditioning unit in the tribunal room began to make a loud noise. The parties confirmed they wished to continue to conclude the evidence using the computer which was set up in that tribunal room. Once the evidence was concluded the hearing transferred to another tribunal room for the parties to make their submissions.[13]At the end of the evidence Mr Gold provided a written document setting out his submissions on the facts. His written submissions on the law in respect of whether the Claimant was self-employed had been provided to the Claimant on the previous Friday. Mr Gold had initially suggested that he intended to hand up his written submissions on the facts and only speak to them briefly (for five minutes). The Employment Judge informed him that he would need to provide the Claimant with a copy of the written submissions in advance of making his submissions so that she had time to read them. In the event Mr Gold took the Tribunal through his written submissions orally so that the Claimant had the benefit of the interpreter translating what he said. The Claimant then made her oral submissions to the Tribunal.[14]The submissions concluded at 5 o’clock leaving no time for the Tribunal’s deliberation and judgment. The Tribunal informed the parties that its decision would be reserved and that the Tribunal might not be able to meet again until September. However the Tribunal was subsequently able to make arrangements so that it met to conclude its deliberation in Chambers the following day, Wednesday 24 July.
Findings of fact
[15]The following facts were not disputed by the Claimant: The Respondent was a small charity run by volunteers. It engaged teachers and teaching assistants to teach French on Saturday mornings to children ranging from infants to 11 year olds. The Claimant was contracted to provide three one-hour French lessons on Saturday mornings during term times for a maximum of 30 weeks in a year. 5 of 12[16]The Board that reached the decision to terminate the Claimant’s contract was made up of the following six individuals Sonia Marguin, Chair, white French; Angeline Gnangui, Treasurer, black originally from Ivory Coast; Agnes Balogh, Secretary, white; Yanick Rimbon, School Manager, black, from French Antilles; Lucie Dehon, active member, librarian, white; Makila Nsika Nkaya, adult teacher, former Board member, volunteer adviser on pedagogical issues, described as “mixed race” French Congolese.[17]Apart from the Claimant, 12 teachers and teaching assistants were contracted to provide services, they were described by the Respondent as follows: two black, one Indian origin, one North African origin, one mixed race (white/black African), one French Antilles (mixed race) and seven white. 28% of the children studying in the school were non-white. Whether the Claimant was an employee or worker; or an independent contractor[18]The contract between the Claimant and the Respondent [page 95 of the bundle] is described as a ‘Consultants Agreement’ and a ‘Contract for teaching services’; paragraph 1 introduction and definitions, states, “This agreement is between Les Crocodiles and Laetitia Ponde Nkot (hereinafter called “the Consultant”).”[19]The Claimant did not dispute any of the evidence contained in paragraph 7 of Sonia Marguin’s witness statement which sets out the description of how teachers and teaching assistants provide their services to the Respondent.[20]At paragraph l, the statement sets out that “Teachers can send a substitute if they so wish, as long as the substitute is DBS checked and has the relevant competence. In my experience as a Board member such situation occurred once for one of our youngest (aged 2 to 3 years old). In most occasions, the teacher cannot provide a replacement due to the last-minute sickness.” And at m: “In case an absence is planned, and the teacher didn’t find a suitable replacement, Les Crocodiles may ask one of the parents (a qualified Teacher) to teach. On other occasions, Yanick Rimbon or Agnes Balogh have replaced a missing teacher, or the class has been cancelled.” The relevant law The Equality Act 2010
The relevant law
[21]Section 13 of the Equality Act 2010 Direct discrimination (1) “a person (A) discriminates against another (B) if, because of a protected characteristic, treats B less favourably than A treats or would treat others.[22]Section 23 (1) provides that when a comparison is made, there must be no material difference between the circumstances relating to each case. 6 of 12[23]Section 39(2) of the Equality Act provides that an employer must not discriminate against an employee. It sets out various ways in which discrimination can occur and these include dismissal.[24]Section 83 of the Equality Act 2010 Interpretation and exceptions(1) This section applies for the purposes of this Part.(2) “Employment” means – (a) employment under a contract of employment, a contract of apprenticeship or a contract personally to do work; Employment Tribunal’s Extension of Jurisdiction (England and Wales) Order Article 3 Extension of jurisdiction[25]Proceedings may be brought before an employment tribunal in respect of a claim of an employee for the recovery of damages or any other sum (other than a claim for damages, or for a sum due, in respect of personal injuries) if – (a) the claim is one to which section 131 (2) of the 1978 Act applies the and which caught in England and Wales would under the law the time being in force have jurisdiction to hear and determine; … the claim arises or is outstanding on the termination of the employee’s appointment. Findings of fact on matters in dispute Whether there was a contract for the Claimant to provide work personally[26]We are satisfied on the evidence that the contract was for the Claimant to provide services personally and any replacement had to be suitable to the Respondent, the examples given were existing staff members, parents or Board members stepping in. We find that the Claimant would not have been able to send just anyone in her place. We accept that the Claimant was responsible for her own tax and national insurance and was only paid for teaching and not for any preparation; she was not entitled to payment for sick pay or holiday pay. The contract provided for teaching to take place at the time and location the Respondent specified, the Claimant did not have control over where she taught or over the timetable or the age ranges in the class; this was different to the situation of a personal tutor who would be able to arrange where and how often lessons took place.[27]We are satisfied that the contract provided for Claimant to provide services personally and that is sufficient for the engagement to come within the extended definition under section 83 of the Equality Act 2010. We are satisfied that this is in line with the interpretation required by the Court of Justice of the EU which requires a broad definition to give effect to the protection from discrimination (see Allonby v Accrington 7 of 12 and Rossendale College and others [ 2004] IRLR 224, [2004] ICR 1328, ECJ); and that it is substantially wider than the corresponding definition in s230 (1) of the Employment Rights Act 1996, and wider than the employer-worker relationship outlined in s230(3) in that it encompasses situations, such as this one, where a genuinely self-employed person contracts to do work. Whether the Claimant is an employee[28]We find that the Claimant was not an employee. The contract is clear on that point and that was the arrangement that she signed up to. The Claimant accepted that she agreed to invoice for her hours and was responsible for her own tax and national insurance, she provided her own materials although she could use those provided by others. Whether the Claimant use the words ‘regular’ or ‘ad hoc’ in her application did not assist us in reaching this conclusion, we have found that it was clear to both sides at the time the agreement was entered into that the Claimant was not an employee and nothing that took place subsequently operated to change that relationship. We accept the Respondent’s written submissions on the law in this respect.[29]We find that the Claimant was a self-employed contractor but that she was engaged under a contract personally to do work. As a result of our findings we do not have jurisdiction to hear the claim for breach of contract. We do have jurisdiction to hear the discrimination claim under the Equality Act 2010. Race discrimination claim[30]The Claimant’s complaint is in respect of the termination of the contract on 27 September 2018. The Claimant applied for the position as a French tutor in July 2018 and on 29 July 2018 she was invited to an interview. The interview was conducted by Miss Rimbon, who is also black.[31]The Claimant alleged that the Respondent did not realise she was black until she turned up to teach on 15 September 2018 and then found, or made up, an excuse to terminate the contract.[32]We accept Ms Rimbon’s evidence that the interview started using Skype, then switched to WhatsApp video and then due to technical difficulties continued via a regular call. We are satisfied that the Respondent was well aware that the Claimant was black before it offered her the role of teacher. The Claimant provided the Respondent with some documents prior to starting teaching on 15 September, including her ID documents. A colour copy of her ID document was attached to an email on 3 August 2019 and it can be seen from the Claimant’s photograph that she is black.[33]The Respondent terminated the contract with the Claimant on the 27th September 2018 [document 327 in French p329 translated into English] the reason given was that she did not have the necessary skills.[34]The Respondent relied on the reasons set out in its Response to the Claim [at paragraphs 11 to 13 of the Amended Response]. The Claimant disputed those reasons were genuine and asserted that her standard of English was more than good enough, 8 of 12 she compared herself to Mrs Balogh, maintaining that her own standard of English was far better than Ms Balogh’s.[35]Mr Sullivan Navet, the outgoing teacher of the three classes the Claimant was about to take over, contacted the Claimant before the first lesson and gave her an outline of each class, their level and what to expect. We are satisfied that he did so to be supportive and in an effort to ensure the classes were a success. Mr Navet was present to provide support on Saturday 15 September. After the lessons he was concerned by what he had observed and went to speak to Ms Rimbon. He told Ms Rimbon that when the Claimant attended she was unprepared, had no materials and had not prepared a lesson plan and he in fact had to lead the classes. The Claimant did not dispute that she was not prepared: her explanation was she thought she was just there to observe on the first occasion. We are satisfied from the email from Mr Navet [page 141 to 142] it is clear it was expected that the Claimant would be the teacher and that he was giving her information to assist her to prepare for the class, there was nothing to suggest she would just be observing.[36]Mr Navet conveyed his concerns to Ms Rimbon immediately after the three sessions on 15 September and then contacted the Claimant [page 141] to send her his old lesson plans for the three classes to give her some ideas. Again, we find that this was an attempt to be supportive. Ms Rimbon tried to arrange a Skype meeting with herself, the Claimant and Mr Navet and asked the Claimant to present her proposed lesson before the class the following Saturday. The Claimant was also asked to provide her lesson plans. The Skype meeting did not take place. The Claimant did send her lesson plan [page 197] and asked if she had to print her own materials, she did not receive a response to this. The Claimant told us that the reason she was late for each of her three sessions on 22 September was that she was printing her materials.[37]On 21 September Ms Balogh contacted the Claimant to let her know that she would be observing her class and also sent her some materials from “Les Loustics” which she suggested might be useful, although the Claimant was not required to use them. Ms Balogh had been asked to assist the Claimant due to the feedback from Mr Navet. Ms Balogh’s notes of her observations of the three classes taught by the Claimant on 22 September 2018 and her conclusions based on what she had observed were at pages 239- 241 in the bundle.[38]The Claimant disputed Ms Balogh’s account was accurate and she particularly disputed placing her hand over a child’s mouth. We accept Ms Balogh’s evidence about the Claimant’s teaching and conduct. We accept that she made a contemporaneous note of her observations in those three classes and that they are specific and detailed in respect of what took place. Ms Balogh’s raised her concerns with the Claimant immediately after the class.[39]Mrs Balogh took her concerns to the Board meeting which took place on 27 September 2018. Six Board members were present (as set out in the minutes at pages 323- 324, page 325 is the English translation of the part of the minutes relevant to the Claimant). We accept that where the words “rude gestures” are used in that translation that is not an accurate translation of “Geste deplace envers un enfant”. 9 of 12 The Claimant’s comparators[40]The Claimant compared herself to Ms Balogh claiming that her English was at the same or better level. We do not find this to be the case. Ms Balogh’s uncontested evidence was that she has been working for 14 years as a freelance conference interpreter working mainly for the European Institutions: the European Parliament, European Council and the Court of Justice of the EU, using English as one of her working languages. She also has a Masters degree in English language and literature and works as a freelance translator as well as being an independent lecturer at two universities teaching Masters degrees in conference interpreting. We have seen the Claimant’s standard of written English in the documents in the bundle, including her lesson plans and in her witness statement prepared for this Tribunal and we are unable to find that the Claimant’s level of English is at the same level as Ms Balogh.[41]The Claimant also compared herself to Navet Sullivan and to a female teaching assistant neither of whom had an FLE certificate. We find on the evidence before us that the Respondent did not have a requirement that teachers or teaching assistants had a FLE certificate; Ms Rimbon’s evidence on this point is consistent with the documents in the bundle including the advert at page 53. In her application for the position the Claimant stated that she had a FLE certificate. We are satisfied that Ms Rimbon did ask her for a copy of her certificate and that she may have done so more than once as no certificate was forthcoming despite the Claimant indicating that she would provide a copy. We heard from Ms Rimbon in evidence and do not accept that Ms Rimbon was unpleasant towards the Claimant either in the manner in which she asked about the certificate or in any other way. Burden of proof[42]Section 136 of the Equality Act 2010 sets out how the burden of proof operates in a discrimination case. In Igen Ltd v Wong and others [2005] IRLR 258 tribunals were given guidance on the application of the burden of proof.[43]At the first stage, we consider whether the Claimant has proved facts on a balance of probabilities from which we could conclude, in the absence of an adequate explanation from the Respondent, that the Respondent committed an act of unlawful discrimination. This can be described as the prima facie case. It is not enough for the Claimant to show merely that she has been treated less favourably than her comparator and that there is difference of race (colour) between them; there must be some evidential basis upon which the tribunal could infer that the Claimant’s colour consciously or subconsciously was a cause of the treatment. At the first stage, we must assume that the Respondent has no adequate explanation for its behaviour and therefore ignore any explanation it advances. This only becomes relevant at the second stage.
Conclusions
[44]We have found that the Claimant’s failure to produce the FLE certificate was not the reason for the termination of the contract, nor was it the reason for not offering the Claimant alternative classes. We accept Ms Rimbon’s evidence, at paragraph 10 of her witness statement, that the reason she requested a copy of the 10 of 12 Claimant’s certificate was because the Claimant had said in her application that she had one; she was simply asking her to provide the document that the Claimant had said since August that she would provide. We do not accept that Ms Rimbon was unpleasant in making her request. It may be that the Claimant felt uncomfortable at the request because she did not in fact have a certificate, just as she was very evasive in her evidence to the Tribunal when asked about her certificate by Mr Gold. We have seen the documents in the bundle which the Claimant initially described as her certificates [pages 421 and 425] but which she then described as evidence of having completed the FLE course. The Claimant told the Tribunal that she had undertaken the FLE course online and had chosen the option of not paying to receive a certificate. When pressed the Claimant conceded that she had missed some weeks of the course and was evasive about whether she had successfully completed it.[45]There was no evidence to suggest Ms Rimbon treated the Claimant any differently to how she would have treated a white person who had also stated in their application that they had a FLE certificate. We are satisfied that the two white comparators were not asked to produce FLE certificates because they had not claimed to have one. The circumstances are different and there is no less favourable treatment.[46]We find that the reason Claimant’s contract was terminated was the concern that her skills were not at the required standard and the concern in respect of how she conducted herself both towards Ms Balogh and towards the students in the class on 22 September. We find that the reasons set out in the Amended Response to the claim form are the Respondent’s genuine reasons for bringing the contract to an end. Despite their concerns following the Claimant’s poor performance on the 15th September the Respondent gave the Claimant an opportunity to improve. The Claimant contends that the Respondent had wanted to get rid of her soon as they found out she was black and made up the allegations about her performance and conduct in order to justify dismissing her. We do not accept this contention. If the Respondent had been intent on terminating the contract as soon as possible it could have done so on the first day when the Claimant turned up unprepared and without any materials. Instead the Respondent gave her the opportunity to demonstrate that she could teach to the required standard and to provide her materials. It tried to give her the opportunity to present a prepared lesson to them in advance of the next session on 22nd of September. When the skype meeting did not take place the Respondent asked Ms Baolgh to attend the Claimant’s classes in order to support her and to assess whether she was up to the required standard.[47]In his submissions Respondent’s Counsel told the Tribunal that he rowed back from saying the Claimant was dishonest but he did submit that she had given evidence which did not have a connection with reality and that her response to criticism was an extremely negative one; he referred back to the Claimant’s conduct at the start of the hearing and her rudeness to the Judge when asked to explain her absence the day before. 11 of 12[48]We find in respect of the termination of the contract that the Claimant’s circumstances were materially different to those of her chosen comparators, the Respondent had found them to be competent teachers who were able to teach French to English speaking children in an age appropriate way. We have considered whether there is any evidence from which we could conclude that a hypothetical comparator would have been treated more favourably and we have not found any. We find that there is no cogent evidence upon which we could infer that the Claimant was treated less favourably than her chosen comparators for reason related to her race. We are satisfied that the Respondent would have treated a white teacher in exactly the same way in the same circumstances.[49]We considered the reason for the Claimant’s treatment (in the Shamoon sense – the reason why) and have found no evidence from which we could find or infer that consciously or subconsciously her colour was the reason for the treatment she complains of or had any bearing or influence on the Respondent’s assessment of her capabilities, her teaching ability or her conduct.[50]We therefore dismissed the claim of race discrimination. Breach of contract claim[51]We have found that we do not have jurisdiction to decide the claim for breach of contract as the Claimant was not an employee.[52]However, in case we are wrong in that conclusion we considered whether the Respondent had grounds to summarily terminate the contract. We are satisfied that the Claimant’s actions amounted to a breach of contract and that she had acted negligently and/or in a manner that seriously harmed the reputation of the Respondent and or in a way that was inconsistent with the Respondent’s Code of Conduct, in her conduct in placing her hand over a child’s mouth to silence her and in her conduct towards Ms Balogh. ………………………………………………………….