Ms A Thomas v Governing Body of Oakview Primary and Nursery School and Hertfordshire County Council: 3302150/2023
EMPLOYMENT TRIBUNALS
Case No 3302150/2023
Between
Ms A ThomasClaimantGoverning Body of Oakview Primary and Nursery School and Hertfordshire County CouncilRespondent
Before
Employment Judge Partington, Mrs Brown and Mrs EdwardsIn person for claimantSinead King (instructed by Counsel) for respondentDate 6 March 2026
JUDGMENT
[1]The complaints of harassment and direct discrimination relating to alleged acts in or around July 2022 and February 2022, as set out at paragraphs 10.5.1, 10.5.2, 10.9.1, 10.9.2, 10.13.1, 10.13.2, 10,16.1 and 10.16.2 of the list of issues set out in the Case Management Order dated 18 September 2024, were not presented within the applicable time limit, but it is just and equitable to extend the time limit.[2]The remaining complaints were presented within the applicable time limit.[3]The complaints of harassment related to disability are not well-founded and are dismissed.[4]The complaints of harassment related to race are not well-founded and are dismissed[5]The complaints of direct disability discrimination are not well-founded and are dismissed.[6]The complaints of direct race discrimination are not well-founded and are dismissed.[7]The complaints of failure to make reasonable adjustments for disability are not well-founded and are dismissed. Approved by: Employment Judge Partington 6 March 2026
REASONS
[1]We had witness statements from: The claimant. Neil Richardson (Headteacher at Oak View Primary and Nursery School (“the school”)), who attended in person. It was agreed that paragraph 29 of his witness statement would be disregarded as it referred to “without prejudice” Acas discussions. Sheila O’Shaughannesy (School Business Manager at the school), who attended in person. Susan Wombwell (class teacher at the school who was supported by the claimant in her class between August 2020 and August 2022), who attended in person. Case Number: 3302150/2023 2 Anthony Kent (chair of Governors of the school) provided a witness statement but did not attend as a witness. Counsel for the respondent invited the tribunal to treat his evidence as hearsay evidence.[2]We also had before us three bundles: a main hearing bundle running to 293 pages; a supplemental bundle running to 113 pages; and the claimant’s additional documents running to 61 pages.[3]We had written opening submissions from the claimant and respondent’s counsel.[4]We also had a reading list and chronology from the respondent.[5]We were also provided with written closing submissions from the claimant and respondent’s counsel as well as oral closing submissions.
Preliminary matters
[6]By way of preliminary matters, Ms Thomas explained that she suffered from ADHD and autism and had requested an intermediary. I explained that an intermediary was for people who struggled to communicate with the tribunal and she could communicate well with the tribunal, so that was not appropriate.[7]Ms Thomas said that she needed a notetaker as she would struggle to take notes of my directions during the hearing. I said the tribunal could not provide a notetaker but I would give Ms Thomas the chance to write down any instructions she needed to during the hearing, and she agreed to that arrangement.[8]Ms Thomas also wanted a 15 minute break every 50 minutes or so throughout the hearing which I allowed.[9]She also wanted to stand up from time to time during the hearing, which I also allowed.
List of issues
[10]I checked that the list of issues set out in the case management order dated 18 September 2024 at pages 59 to 64 of the supplementary bundle were agreed.[11]The claimant suggested she might want to amend her claim, but I explained that at this very late stage, that could severely prejudice the respondent and, if I did allow it, it would require an adjournment which would mean the hearing would not be heard for many months. The claimant decided not to seek an amendment to her claim and accepted that the list of issues was agreed. The respondent confirmed that the list of issues was agreed.[12]One update to the list of issues is that the respondent has accepted that the claimant was disabled because of back pain and/or weakness in her legs at the relevant time.[13]I use the numbering of the list of issues as set out in the supplementary bundle where I need to cross refer to them in these reasons. Case Number: 3302150/2023 3
The claims
[14]In terms of the claims, the claimant brings claims for race and disability related harassment, direct race and disability discrimination, and a failure to make reasonable adjustments.
The law
[15]I set out below a summary of the key legal principles relevant to these proceedings. Harassment Harassment, contrary to section 26 of the Equality Act 2010[16]The claimant must demonstrate that there are facts from which the tribunal could decide, in the absence of any other explanation, that she experienced disability related harassment or race related harassment. The tribunal must be satisfied that:a. the claimant experienced unwanted conduct;b. the conduct related to the protected characteristic relied upon;c. the conduct had the purpose or effect of violating the claimant’s dignity or creating an intimidating, hostile, humiliating, or offensive environment for the claimant;d. where the conduct does have that purpose, in considering the effect of the conduct, the tribunal must take into account: i. the perception of the claimant, ii. the other circumstances of the case, iii. whether it is reasonable for the conduct to have that effect. If one of these three matters is not established then the claim must fail.[17]In the case of Worcester Health and Care NHS Trust v Angela Allen [EAT, 19 March 2024] the EAT established that the conduct needs to relate to the protected characteristic. In some circumstances, for example, the use of sexist language, the relationship between conduct and the protected characteristic of sex is made out by the language used, but there are other circumstances in which it is necessary to consider the mental processes of the alleged harasser such as where there is a failure to act.[18]In Allen, Taylor J gave the example of a failure to follow a grievance process: “…it is the “conduct” that must be “related to” the protected characteristic. Thus, if it is asserted that a failure properly to investigate a grievance alleging discrimination constitutes harassment it is not sufficient that the grievance was related to the protected characteristic, the failure properly to investigate the grievance, which constitutes the Case Number: 3302150/2023 4 conduct, must be related to the protected characteristic.” Direct discrimination contrary to section 13 of the Equality Act 2010[19]It is for the claimant to demonstrate that:a. she was treated less favourably than others were or would have been treated;b. there must be no material differences between her circumstances and those “others” to whom she compares her treatment;c. a significant reason for the difference in treatment is the protected characteristic. Breach of reasonable adjustments contrary to sections 20 to 21 of the Equality Act 2010[20]The requirements of the duty to make reasonable adjustments are set out in s20 Equality Act 2010, and, by s 21 Equality Act 2010, a failure to comply with the duty amounts to discrimination.[21]The duty applies where a provision, criterion, or practice puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled. “Substantial” means “more than minor or trivial”.[22]The disadvantage must be linked to the disability.[23]The duty is to take such steps as it is reasonable to have to take to avoid the disadvantage.[24]The employer is not subject to the duty if it shows that it did not know and could not reasonably be expected to know that the person had a disability and was likely to be placed at the relevant disadvantage.[25]Guidance on the approach to section 20 was given by the EAT in the Environment Agency v Rowan [2008 IRLR 20] and RBS v Ashton [2011 ICR 632] in which Langstaff J said: “…an employment tribunal considering a claim that an employer has discriminated against an employee pursuant to section 3A(2) of the Act by failing to comply with section 4A duty must identify:(a) The provision, criterion or practice applied by or on behalf of an employer, or(b) The physical feature of premises occupied by the employer…(c) The identity of non-disabled comparators (where appropriate) and(d) The nature and extent of the substantial disadvantage suffered by the claimant.”[26]Section 20(5) of the Equality Act 2010 provides that: Case Number: 3302150/2023 5 “… (5) The third requirement is a requirement, where a disabled person would, but for the provision of an auxiliary aid, be put at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to provide the auxiliary aid.[27]The requirement to make reasonable adjustments requires taking such steps as are reasonable to alleviate the disadvantage. What is reasonable includes the consideration of the practicality, cost and resources, and the impact on business operations and other employees. Burden of proof[28]It is for the claimant to prove facts from which the tribunal could reasonably find there was a breach of section 13, sections 20 and 21, or section 26 of the Equality Act 2010. If so, the burden passes to the respondent to disprove.[29]Whilst counsel for the respondent did not cite specific case law relating to shifting the burden of proof, I nonetheless cite cases relevant to this issue which inform how the tribunal should approach the issue.[30]In Field v Steve Pye and Co (KL) Ltd [2022 EAT 68], the EAT restated the approach the tribunal should take to the burden of proof. I do not set out all of the steps now but, in summary, there is a two-stage test. At stage 1 there must be primary facts from which the tribunal could decide, in the absence of any other explanation, that discrimination took place. At this stage, all that is needed are facts from which an inference of discrimination is possible. Primary facts are sufficient to shift the burden if a reasonable tribunal could properly conclude, on the balance of probabilities, that there was discrimination. At Stage 1 the burden of proof is on the claimant. The employer’s explanation is disregarded and it is therefore impermissible to use an inadequate explanation from the respondent as a primary fact.[31]Unfair or unreasonable treatment on its own is not enough. Something more is required as set out in Madarassy v Nomura International Plc [2007 EWCA Civ 33]. If the burden of proof does shift, at stage 2 under the Igen guidance, the employer must prove that the less favourable treatment was in no sense whatsoever because of the protected characteristic. Because the evidence in support of the explanation would usually be in the possession of the employer, tribunals should expect “cogent evidence” for the employer’s burden to be discharged. Time limits[32]Complaints must be brought within three months of the date of the act to which the complaint relates or such other period as the tribunal thinks just and equitable.[33]Extension does not require exceptional circumstances. In exercising the discretion a tribunal ‘may’ not ‘must’ have regard to the checklist contained in section 33 of the Limitation Act 1980 as modified by the EAT in British Coal Case Number: 3302150/2023 6 Corporation v Keeble and ors [1997 IRLR 336], which sets out the factors for the tribunal to weigh up which includes considering the prejudice that each party would suffer as a result of the decision reached and having regard to all the circumstances of the case, in particular, the length of and reasons for the delay, the extent to which the cogency of the evidence is likely to be affected by the delay, the extent to which the respondent has cooperated with any request for information, the promptness with which the claimant acted once he or she knew of the facts giving rise to the complaint and the steps taken by the claimant to obtain appropriate advice once he or she knew of the possibility of taking action.[34]Under section 123(3) of the Equality Act 2010:a. conduct extending over a period is to be treated as done at the end of the period;b. a failure to do something is to be treated as occurring when the person in question decided on it.[35]Under section 123(4) of the Equality Act 2010 it is provided that in the absence of evidence to the contrary, a person (P) is to be taken to decide on failure to do something—a. when P does an act inconsistent with doing it, orb. if P does no inconsistent act, on the expiry of the period in which P might reasonably have been expected to do it.
The facts
[36]We find the following facts on the balance of probabilities. Where we have needed to resolve disputed facts, we make that clear. We have not made findings on every fact presented to us but merely on those which assist us to come to a decision bearing in mind the list of issues.[37]Page references (not preceded by letters) are to pages in the main bundle. Where the page reference is preceded by the letters “SB”, that is a reference to the relevant page in the Supplemental Bundle. Where the paragraph reference is preceded by the letters “C W/S” that is a reference to the claimant’s witness statement. Where the paragraph reference is preceded by the letters “NR” that is a reference to Neil Richardson’s witness statement.[38]On 14 September 2015, the claimant’s employment as a teaching assistant began.[39]On 4 November 2020, the claimant had a medical incident and was diagnosed with bulging discs and suffering from back pain, and she commenced long-term sick leave. [76][40]From September 2021, the claimant returned to work on a phased return with amended duties for eight weeks. [76] Case Number: 3302150/2023 7[41]The phased return was extended to 24 February 2022. [77][42]On 30 November 2021, the claimant was asked if she could start at 10.45am to the end of the day going forward due to staff shortage. [75][43]On 10 February 2022, the claimant met with Mr Richardson to discuss her duties and seek an extension to the phased return. [77][44]On 11 February 2022, the claimant was referred to Occupational Health. [77-78][45]On 15 February 2022, Occupational Health informed Sheila O’Shaughannesy that the claimant had requested prior sight of the Occupational Health report before it was issued to the school. [SB86][46]On 21 February 2022, the claimant wrote to Mr Richardson. She sought the provision of a chair with lumbar back support, an 8.30am start and a 1.30pm finish, and a risk assessment. [79-80][47]The claimant attended a meeting with Mr Richardson and Sheila O’Shaughannesy on the same day, to discuss the letter. [81-84][48]On 23 February 2022, Sheila O’Shaughannesy informed Occupational Health that the claimant had called Occupational Health to try and obtain clarification about her report but the claimant had been told there were no appointments available and the Occupational Health advisor was not available. [SB88][49]Sheila O’Shaughannesy emailed the claimant to inform her that as there was not a way to request a consultation on the Occupational Health portal, that she had emailed a request for the Occupational Health advisor to contact the claimant and confirmed to the claimant that she was welcome to use Susan Wombwell for support and to discuss the report directly with Susan Wombwell without Susan Wombwell disclosing information to Mr Richardson. [SB89][50]On 24 February 2022, a fit note was provided citing bilateral knee pains and chronic back pain. It stated that the claimant was fit to work altered hours to accommodate the chronic back pain and be allocated lighter duties for three months from 24 February 2022 to 23 May 2022. [181][51]The claimant informed Sheila O’Shaughannesy that she had a call with Occupational Health and she should receive an amended report in the next five days. [SB89][52]On 30 March 2022, Sheila O’Shaughannesy chased Occupational Health for the report advising that when she spoke to the claimant she had not received the report and advised that the Occupational Health advisor was going on annual leave until later in February 2022. She asked for the status of the referral. [SB91][53]On 23 March 2022, there was a whole school email about a trip to Hatfield House for the Queen’s Platinum Jubilee on 25 May 2022. [85][54]On 6 April 2022, Sheila O’Shaughannesy chased the Occupational Health provider for an update on the status of the report but was advised the practitioner Case Number: 3302150/2023 8 was out of the office without a return date and the matter had been escalated to a line manager and the Occupational Health report would be amended on her return in line with the clarification sought by the claimant. [SB91-92][55]On 15 May 2022, a fit note was provided citing the claimant’s bilateral knee and back pains and that the claimant was fit for altered hours and amended duties until 14 August 2022. [86/182][56]On 16 May 2022, Sheila O'Shaughnessy chased the Occupational Health provider for an update on the Occupational Health report. [SB93][57]On 23 May 2022, the claimant emailed Mr Richardson to express her concern about the Hatfield trip. She advised that in past visits to Hatfield House she had sat on the grass with the children. Unfortunately, she was unable to do this now because her back was too painful and her legs were weak. She said that whilst she had been told she could go on the minibus she did not believe this would be enough as she was unable to stand or walk and did not feel it was safe for her to attend. [88][58]On 24 May 2022, the claimant was assigned alternative duties instead of attending Hatfield House. [C W/S paragraph 54][59]On 6 June 2022, the Occupational Health provider informed Sheila O'Shaughnessy that the claimant had withdrawn consent for the report to be released. [SB95][60]On 7 June 2022, the Occupational Health provider confirmed that a new appointment had been scheduled for 30 June 2022. [SB97][61]On 8 June 2022, Sheila O'Shaughnessy confirmed the date of the appointment and confirmed this was the earliest available. [SB98][62]On 30 June 2022 was the Occupational Health appointment. Occupational Health recommended the working pattern continue, to give the claimant the opportunity to stretch and perform her exercises in the morning, hopefully aiding some functionality in her legs. If she was unable to undertake her full hours when the new school year started, it suggested the school might consider reviewing her full-time contract in open discussions with her. [121-122][63]A fit note was provided stating the claimant was fit to work altered hours, amended duties, and with workplace adaptations from 14 August 2022 to 13 November 2022. [183][64]On 1 July 2022, the Occupational Health provider notified Sheila O'Shaughnessy that it had released the report to the claimant. The claimant required prior sight of the report before it was issued. [SB101][65]On 11 July 2022, parents and carers were informed that there would be a Transition Day on Thursday 14 July. Term finished at 1pm on Friday 22 July 2022. [91-92][66]On 12 July 2022, the Occupational Health report was released to Sheila Case Number: 3302150/2023 9 O'Shaughnessy by the provider. [SB103][67]On 12 July 2022, Mr Richardson sent instructions to staff on managing the Transition Day [93-94].[68]Also that day, the Occupational Health provider confirmed a copy of the report had been issued to managers. [120][69]On 14 July 2022, the claimant complained that she had not been told what class she was in for Transition Day, and Mrs Wombwell told her where she would be tomorrow, but questioned whether she would be just with the class for the day and what class she would be in in September. [95][70]Also that day the claimant attended a meeting with Mr Richardson. [96][71]On 20 July 2022, Mr Richardson wrote to the claimant to confirm the contents of his discussion with the claimant relating to the working pattern of 14 July 2022. The claimant would be permitted to work 8.30 to 2pm “against the recommendation of the Occupational Health provider but [as] requested by [the claimant], for the Autumn term ending on 21 October 2022. If the claimant required reduced hours thereafter the claimant would need to submit an application to be received before 11 October 2022. [96-97][72]On 22 July 2022, Neil Richardson sent a letter of 20th July under cover of email referring to the meeting on 14 July. [98][73]On 1 September 2022, the claimant advised that she did not want to go against the working pattern in the Occupational Health report. [99][74]On 7 September 2022, Neil Richardson acknowledged the claimant’s email of 1 September. He advised that what Occupational Health recommended was to start at 10.45am and finish at 3.30pm with lunchtime remaining the same. He advised the claimant that the reduced hours would stop at the end of half term and if they were continued to be required the claimant would need to submit a flexible working application which would be reviewed by the full governing body and needs to be submitted before 11 October 2022. [101][75]On 6 October 2022, the claimant submitted a statutory flexible working request seeking working hours of 10.45 to 3.30pm. [105][76]The claimant, Neil Richardson, and Sheila O'Shaughnessy met to discuss the claimant’s request with the claimant’s trade union representative, Graham Nickson. [106-109][77]On 18 October 2022, Graham Nickson wrote to Neil Richardson with a counter proposal. [110-111][78]On 21 October 2022, Mr Richardson wrote with a further counter proposal. [114][79]On 31 October 2022, the claimant sent a letter in response to the proposal under cover of email. [115-116] Case Number: 3302150/2023 10[80]On 4 November 2022, the claimant was invited to attend a meeting on 8 November to discuss the flexible working request. [118][81]On 8 November 2022 the claimant met with Mr Richardson to discuss flexible working. [129-130][82]Mr Richardson emailed minutes and the outcome letter of 8 November setting out the respondent’s position which required a response by 10 November 2022. [127][83]On 10 November 2022, Mr Richardson chased the claimant for a reply. [131][84]On 11 November 2022, the claimant sought clarification of the points raised in the letter of 8 November. [132-133][85]On the same day, Mr Richardson provided the clarification sought. [134][86]On 14 November 2022, the claimant commenced long term sick leave and has not returned to work since.[87]On 15 November 2022, the claimant asked for an update on her flexible working request. [136][88]On 6 December 2022, the claimant sent another letter to Carole Nash, Susan Wombwell and Neil Richardson “chasing up a written response from Mr Ricardson”. [137-138][89]On 19 December 2022, the claimant emailed a grievance to the governors and to Anthony Kent. [140-141][90]On 5 January 2023, Anthony Kent acknowledged receipt and advised that he would consider the matter and discuss the contents with HR and be in touch in due course. [151][91]On 17 January 2023, the claimant was signed off with stress and anxiety from 17 January 2023 to 10 February 2023. [184][92]On 24 January 2023, the school proposed an 8.30am to 12.30pm working pattern. [NR paragraph 139][93]On 2 February 2023, the school provided payroll documents changing terms and conditions on the basis of an 8.30am to 12.20pm start time but the claimant did not respond. [NR paragraph 140; SB108-109 ][94]On 6 February 2023, the claimant applied for Access to Work. [152][95]On 27 February 2023, there was the early conciliation notification and the issue of the Acas Certificate and the issue of the claimant’s claim. [1 and 7][96]On 16 March 2023, the claimant was signed off with work-related stress for one month from 16 March 2023 to 15 April 2023. [185] Case Number: 3302150/2023 11[97]On 23 March 2023, Anthony Kemp provided a substantive response to the claimant’s grievance advising that it was outside the scope of a grievance as it largely related to flexible working covered by the appeal process and was otherwise time barred. [155, 157-158] Application of the law to the facts Time limits[98]As set out in the list of issues, because of the date the claimant contacted Acas and submitted her ET1, acts occurring before 24 September 2022 may be out of time.[99]In relation to the allegations of harassment and direct discrimination which occurred before that date (in or around July 2022 and February 2022, as set out at paragraphs 10.5.1, 10.5.2, 10.9.1, 10.9.2, 10.13.1, 10.13.2, 10,16.1 and 10.16.2 of the list of issues set out in the Case Management Order dated 18 September 2024) the tribunal has decided it is just and equitable to extend time, taking into account the prejudice to the parties. The prejudice to the claimant is that she will not be able to pursue her complaints. The prejudice to the respondent advanced by counsel is the impact on the recollection of the respondent’s witnesses. We took into account that the respondent’s witnesses, whilst unable to recall all details of events, did have a sufficiently good recollection of events to be able to put forward their version of events. Therefore, we did not consider the prejudice to the respondent to outweigh the prejudice to the claimant and so allowed the claims to proceed.[100]Regarding the claim for reasonable adjustments, we do not consider these claims to be out of time given the alleged failures pertain to a state of affairs that was ongoing at the time the claim was brought and had not resulted in a final decision by the respondent not to make reasonable adjustments. There was therefore conduct extending over a period that went beyond 24 September 2022 and the claim was therefore brought within the three month time period. Findings in relation to the disability related harassment claim – issues 10.5.1 to 10.5.9 Issue 10.5.1[101]We find that Mr Richardson did meet with the claimant to discuss arrangements for the start of the next academic year on 14 July 2022, as referred to in his letter to the claimant on 20 July 2022. The claimant conceded in cross examination that the meeting would have taken place on 13 July 2022 but she could not attend the meeting arranged for 3pm that day. We therefore find that the respondent did not engage in the alleged conduct. Issues 10.5.2.1 and 2[102]We find that in February 2022 that the claimant’s flexible working request or change in working hours was dealt with by the respondent pursuant to the fit note on 24 February 2022 which recommended altered hours. An Occupational Case Number: 3302150/2023 12 Health report was requested by the respondent pending which the reduced hours arrangements remained in place in accordance with the fit notes provided throughout this period until the end of the academic year (see e.g. letter of 20 July 2022 from Mr Richardson to Ms Thomas [96] confirming working hours of 8.30am to 2pm).[103]The claimant in cross examination, acknowledged that her hours had been reduced throughout this period whilst under a fit note, albeit on a piecemeal rather than a permanent basis. We therefore find the respondent did not engage in the alleged conduct. Issue 10.5.3[104]We find the new Flexible Working Policy was introduced to reflect updates to the law at that time as explained by Neil Richardson in his witness statement at paragraph 82 and acknowledged by the claimant’s own trade union advisor in the meeting on 6 October 2022 [104]. We therefore reject the claimant’s contention this was done as a reaction to her previous request for a change in hours. Issue 10.5.4[105]We find Mr Richardson did require the claimant to complete a new form to change her hours but that this was on advice from HR and the recommendations of the Occupational Health report to deal with contractual changes to working hours under the Flexible Working Policy, as set out in Mr Richardson’s witness statement at paragraphs 56 and 57. There was no evidence before us to contradict this explanation which we found plausible, and consistent with the Flexible Working Policy. Following the case of Allen cited above, that reason did not relate to the claimant’s protected characteristics and, therefore, this complaint fails. Issue 10.5.5[106]Mr Richardson denied the allegation that he told the claimant she could leave her job on or around 11 November 2022 and in the absence of any contemporaneous email or note at the time containing such allegation we find that Mr Richardson did not say this to the claimant. This allegation did not appear until the claimant submitted a grievance on 19 December 2022 [149] and when asked about this allegation in cross examination, the claimant said that this was part of a discussion about the implications of accepting the flexible working change request being a permanent change to the claimant’s contract. We therefore do not find that Mr Richardson was asking the claimant to leave her job. Indeed, the evidence shows the contrary, that Mr Richardson was trying to find a way of accommodating the claimant’s flexible working request. We therefore do not consider the alleged conduct to have taken place. Issue 10.5.6 and 10.5.7[107]Mr Richardson acknowledged he did not reply to the claimant’s email of 15 November or 6 December. However, the tribunal accepted Mr Richardson’s Case Number: 3302150/2023 13 evidence that the reason for this was because he had already responded to the claimant’s request for clarification on 11 November [134]. The tribunal also accepted Ms O’Shaunagessy’s explanation in cross examination that she was not in a position to provide a draft contract to the claimant because the claimant had not accepted the proposed working hours and the HR system did not generate a draft contract as such, it simply updated the working hours arrangements once they were agreed. Following the case of Allen, we find that these reasons were not related to the claimant’s protected characteristics and, therefore, these complaints fail. Issue 10.5.8[108]The claimant received responses from Anthony Kent on 5 January and 23 March 2022 and therefore the alleged conduct did not occur. Issue 10.5.9[109]The respondent accepts it did not carry out the risk assessments required by the claimant on numerous occasions. The claimant says she requested risk assessments at least 14 times.[110]The respondent’s evidence on this was that Mr Richardson wanted the risk assessment to be informed by the Occupational Health report which we have noted was delayed. He also reached out to other bodies for support on how to do the risk assessment; because of the specific nature of the claimant’s disability he was not confident to do this himself. In the end no assistance was provided and alternative assistance was not available locally so he never got round to doing this, as set out in Mr Richardson’s witness statement at paragraphs 46 and 105.[111]We consider Mr Richardson to have provided a straightforward and plausible explanation and, therefore, following the case of Allen, find that the failure to carry out the risk assessment was not related to the claimant’s protected characteristics and so this complaint fails. Findings in relation to race related harassment – issues 10.9.1 to 10.9.6[112]The claimant relies on the same facts as in issues 10.5.1 to 10.5.6 for her claims for race related harassment and for the above reasons we find these complaints also fail. Findings in relation to direct disability discrimination – issues 10.13.1 to 10.13.6[113]The claimant relies on the same facts as in issues 10.5.1 to 10.5.6 for her claims for direct disability discrimination.[114]We have found that the alleged treatment at issues 10.13.1, 10.13.2 and 10.13.5 did not occur for the reasons given above in relation to issues 10.5.1, 10.5.2 and 10.5.5 and therefore these complaints fail.[115]In relation to the remaining complaints, the claimant has failed to shift the burden of proof because of the absence of facts from which the tribunal could reasonably Case Number: 3302150/2023 14 find such discrimination had occurred.[116]The comparators put forward by the claimant were in materially different circumstances as conceded by the claimant in cross examination.a. Mr Lupo, Mrs Taylor and Ms O’Shaunagessy were not teaching assistants nor did they seek or obtain the working pattern the claimant sought for partial days. Each worked a full 8.30am to 3.30pm day.b. Mrs Taylor was a teacher who worked a three day week on a job share with Mrs Pfizer, each working three days a week using Wednesday as a handover day.c. Ms Lupo was a teacher who worked full time at the time of the claimant’s request and dropped to a three day week some two years later.d. Ms O’Shaunagessy was the school’s business manager who had no classroom responsibilities at all.[117]As a result, the claimant has not provided any comparators whose circumstances would give rise to an inference of disability (or race) discrimination (or harassment). These complaints therefore fail. Findings in relation to direct race discrimination – issues 10.16.1 to 10.16.9[118]The claimant relies on the same facts as in issues 10.5.1 to 10.5.9 for race discrimination.[119]We have found that the alleged treatment at issue 10.16.1, 10.16.2, 10.16.5 and 10.16.8 did not occur for the reasons set out in relation to issues 10.5.1, 10.5.2, 10.5.5 and 10.5.8 (above) and these complaints must therefore fail.[120]In relation to the remaining complaints, the claimant has failed to shift the burden of proof because of the absence of facts from which we could reasonably find such discrimination occurred and the comparators put forward by the claimant were in materially different circumstances as we have explained at paragraphs 115-117 above. These complaints therefore fail. Findings in relation to reasonable adjustments – issues 10.19 – 10.25[121]Regarding reasonable adjustments, the respondent accepts that it knew, or could reasonably have been expected to know, the claimant was disabled at the material time. The respondent has also accepted that the matters set out at paragraph 10.20 of the list of issues were a provision, criteria, or practice which applied to a teaching assistant.[122]In relation to the alleged substantial disadvantages that arose, as set out at issue 10.21, our findings are as follows: Issue 10.21.1[123]After returning to work in September 2021 the claimant was never required to Case Number: 3302150/2023 15 work her full contractual hours again. No evidence to contradict this was put forward by the claimant. Furthermore, the proposed flexible working arrangement proposed by the respondent to the claimant on 8 November 2022 to work 8.30am to 2pm, Monday to Thursday with a 10.30am start on Friday and no lunch duties, would not have required the claimant to work her full contractual hours. Moreover, it was never implemented because the claimant went on sick leave and has not returned to work. We therefore find that the claimant was not put at this substantial disadvantage. Issue 10.21.2[124]There was no evidence put forward that the claimant was prevented from attending any medical appointments so we find that the claimant was not put at this substantial disadvantage. Issue 10.21.3[125]Mrs Wombwell (in an arrangement continued by Mrs Richards) and the children in the class, assisted with lifting and carrying. Mrs Wombwell gave a plausible account of this in her cross examination. Furthermore, no issues were raised about this by the claimant at the time the disadvantage was alleged to have occurred, to suggest that adjustments made to support the claimant were inadequate. We therefore find that adjustments had been made to avoid the disadvantage. Issues 10.21.4 and 10.21.5[126]The claimant was provided with a chair. The claimant, herself, acknowledged in cross examination that she had an adult chair available to her. The claimant was not required to sit on the ground or grass, PE benches or plastic folding chairs or an undersized chair, as an adult chair had been made available to the claimant to sit on. To the extent that the claimant did so at the First Aid training, there was no evidence that she had been told to do this, such as raising a complaint at the time, so we infer that this was her choice rather than an obligation imposed on her. Indeed, no issues were raised about any of these points by the claimant at the time the disadvantages were alleged to have occurred to suggest that adjustments made to support the claimant were inadequate. We therefore find that adjustments had been made to avoid the disadvantage. Issue 10.21.4 and 10.21.6[127]The claimant was not required to attend the school trips and the claimant concedes this. We therefore find that adjustments had been made to avoid the disadvantage of sitting on the ground or grass or walking long distances. We therefore find that these complaints fail. Issue 10.25.1[128]In relation to the provision of an auxiliary aid, we do not find that the claimant was placed at a substantial disadvantage in not being provided with a specifically adapted chair because the claimant had adult chairs available to her for use and Case Number: 3302150/2023 16 the claimant had not raised any complaints about these chairs being inadequate at the time. Whilst the claimant sought the provision of a specialist chair following the Occupational Health recommendation, the absence of the provision of the chair had not led the claimant to raise any specific concerns about the inadequacy of the existing provision of an adult chair, and therefore, there was no evidence before us to suggest the claimant had been placed at a substantial disadvantage because of its non-provision. Therefore, this complaint fails. Issue 10.25.2[129]The claimant had an adult chair, which was on wheels and could be moved, available for her use during school assemblies or PE lessons. Furthermore, no issues were raised about this by the claimant at the time the disadvantage was alleged to have occurred. We therefore find that adjustments had been made to avoid the disadvantage and, therefore, this complaint fails.
Conclusion
[130]In conclusion, therefore, it is the unanimous decision of the tribunal that none of the claimant’s claims are well founded and they are therefore dismissed. Approved by: