Mrs F Ravji v The Governing Body of Chater Infant School: 3315489/2022 and 3301944/2023

EMPLOYMENT TRIBUNALS

Case No 3315489/2022, 3301944/2023

Between

Mrs Fatemah RavjiClaimant

The Governing Body of Chater Infant SchoolRespondent

Before

Employment Judge Graham

In person for claimant

Mr M Magee (instructed by Counsel) for respondent

Date 7 May 2025

JUDGMENT

[1]The Claimant has acted unreasonably in the conduct of the litigation, and must pay the Respondent £325 in respect of its legal costs.

[1]The Claimant’s complaints of direct religious discrimination under section 13, Equality Act 2010 are not well-founded and are dismissed.

[2]The Claimant’s complaints of harassment related to religion under section 26 Equality Act 2010 are not well-founded and are dismissed.

[3]The Claimant’s complaints of victimisation under section 27 Equality Act 2010 are not well founded and are dismissed.

[4]The Respondent’s application for costs under rules 76(1)(a) & 76(1) (b) Employment Tribunal Rules of Procedure does not succeed and is dismissed. 10.2 Judgment - rule 61 February Case No: 3315489/2022 & 3301944/2023

REASONS

[1]The Claimant was employed by the Respondent as a teacher. The facts giving rise to these claims are numerous and go back to 2014. In summary the Claimant says that she has been treated less favourably than colleagues due to her religion as she is Muslim. The alleged less favourable treatment concerns criticisms of her performance as well as being performance managed. The Claimant also refers to threatening behaviour, being subjected to two previous disciplinary processes, and she also says that she was not given a pay rise that other staff received. The Claimant brings a claim for victimisation for raising a grievance and for engaging in ACAS Early Conciliation, and she also brings an unfair dismissal claim. The Claimant contacted ACAS Early Conciliation Certificate in respect of Hertfordshire County Council on 21 November 2022. The ACAS Early Conciliation Certificate was issued on 5 December 2022. The Governing body of Chater Infant School was substituted for Hertfordshire County Council by Employment Judge McCarthy on 23 August 2023. The Claimant presented her first claim 3315489/2022 on 31 December 2022. The Claimant presented her second claim 3301944/2023 on 18 February 2023. Hearing & Evidence

[2]The Employment Tribunal was provided with a 1273 page bundle. Unfortunately, as there was an issue with documents at a late stage the bundle pages did not match with the bundle numbers in the witness statements of any of the witnesses. We received written statements in respect of all the witnesses that we heard from. We heard oral evidence from Ms Emily Janes (former teacher at the Respondent), Ms Sara O’Shea (former teacher at the Respondent), Ms Soukeina Mamodhoussen (personal friend of the Claimant and a teacher) on behalf of the Claimant, and heard evidence from the Claimant herself. We heard oral evidence from Ms Amrit Bal-Richards (headteacher at Chater Infant School (‘School’) from 2012), Mr Andre Dourado (former deputy head at the Respondent from September 2015-December 2021), Ms Claire Jones (assistant headteacher & Early years lead from 2015), Mr John de Braux (Academy member at James Marks Academy and Chair of the disciplinary appeal), Mr John Lamb (Associate governor of the School, investigating officer of the 2020 grievance & disciplinary and disciplinary appeal panel member), Ms Kim Cook (Vice Chair of governors of the School and disciplinary panel member), Mr Michael Furness (school governor at Brandles Secondary School, Chair of disciplinary panel), Mrs Kossar Ashfaq (currently part time teaching assistant at the School), Ms Rosalind Pengelly (teacher at the Respondent since 2008), Mr Steve White (Chair of governors of the School) and Rebecca Peterson (SENCO inclusion lead/ teacher at the School) on behalf of the Respondent.

[3]Although we received written witness statements from Ms Nicola Connolly the Claimant did not call her to give oral evidence and the Respondent did not dispute her evidence. Neither did the Respondent dispute Ms Meena Modi’s (former headteacher at the Respondent) statement and so the Claimant was not required to call Ms Meena Modi to give oral evidence.

[4]On day one the parties confirmed that although there had been some dispute about documentation, neither was pursuing applications regarding the bundle and disclosure. After reading the relevant documents and witness statements, the Employment Tribunal asked the Claimant if she understood what an automatic unfair dismissal claim was as she had not referred to it in her witness statement. The Claimant was given an opportunity to consider whether she wanted to continue to pursue this claim. The Claimant said that she misunderstood the claim, and she was bringing a victimisation claim on the grounds of her religious discrimination. The Claimant was also asked to clarify whether she wanted to continue with her breach of contract claim if she suffered no loss and what it was she wanted the Employment Tribunal to do as a remedy. I explain that the Employment Tribunal could make a ruling on whether the Respondent had breached the implied term of trust and confidence. The Claimant said she wanted compensation. The Employment Tribunal explained that if she had not suffered any loss, it could not award any compensation. At the end of the day on 9 July 2024, the Claimant then withdrew two of her claims by handing the Employment Tribunal a piece of paper that stated the date and “I wish to withdraw my automatic unfair dismissal claim. 3315489/2022. Breach of contract can be removed”. The Employment Tribunal asked the Claimant to clarify when she wrote the breach of contract claim can be removed, whether she was withdrawing that claim. The Claimant clarified that she was withdrawing that claim.

The Issues

[5]The issues the Tribunal will decide are set out below. 1.Time limits1.1 Given the date the claim form was presented and the dates of early conciliation, any complaint about something that happened before 30 August 2022 may not have been brought in time.

1.2 Were the discrimination and victimisation complaints made within the time limit in section 123 of the Equality Act 2010? The Tribunal will decide:1.2.1 Was the claim made to the Tribunal within three months (plus early conciliation extension) of the act to which the complaint relates?

1.2.2 If not, was there conduct extending over a period?

1.2.3 If so, was the claim made to the Tribunal within three months (plus early conciliation extension) of the end of that period?

1.2.4 If not, were the claims made within a further period that the Tribunal thinks is just and equitable? The Tribunal will decide:1.2.4.1 Why were the complaints not made to the Tribunal in time?

1.2.4.2 In any event, is it just and equitable in all the circumstances to extend time? 1 .3 Was the unfair dismissal made within the time limit in section 111 of the Employment Rights Act 1996? The Tribunal will decide: 1.3.1 Was the claim made to the Tribunal within three months (plus early conciliation extension) of the effective date of termination? 1 .3.2 If not, was it reasonably practicable for the claim to be made to the Tribunal within the time limit? 1.3.3 If it was not reasonably practicable for the claim to be made to the Tribunal within the time limit, was it made within a reasonable period? 2. Unfair dismissal

2.1 Was the Claimant dismissed? If the Claimant was dismissed, what was the reason or principal reason for dismissal? The Respondent relies upon Some Other Substantial Reason, specifically the breakdown in relations between the Claimant and the headteacher Mrs Bal-Richards. 2.1 Was it a potentially fair reason?

2.2 Did the Respondent act reasonably in all the circumstances in treating it as a sufficient reason to dismiss the Claimant? 4.Remedy for unfair dismissal

4.1 Does the Claimant wish to be reinstated to their previous employment?

4.2 Does the Claimant wish to be re-engaged to comparable employment or other suitable employment?

4.3 Should the Tribunal order reinstatement? The Tribunal will consider in particular whether reinstatement is practicable and, if the Claimant caused or contributed to dismissal, whether it would be just.

4.4 Should the Tribunal order re-engagement? The Tribunal will consider in particular whether re-engagement is practicable and, if the Claimant caused or contributed to dismissal, whether it would be just.

4.5 What should the terms of the re-engagement order be?

4.6 If there is a compensatory award, how much should it be? The Tribunal will decide:4.6.1 What financial losses has the dismissal caused the Claimant?

4.6.2 Has the Claimant taken reasonable steps to replace their lost earnings, for example by looking for another Job?

4.6.3 If not, for what period of loss should the Claimant be compensated?

4.6.4 Is there a chance that the Claimant would have been fairly dismissed anyway if a fair procedure had been followed, or for some other reason?

4.6.5 If so, should the Claimant’s compensation be reduced? By how much

4.6.6 Did the ACAS Code of Practice on Disciplinary and Grievance Procedures apply?

4.6.7 Did the Respondent or the Claimant unreasonably fail to comply with it? Annex B below sets out the details of the alleged breaches of the Code.

4.6.8 If so, is it just and equitable to increase or decrease any award payable to the Claimant? By what proportion, up to 25%?

4.6.9 If the Claimant was unfairly dismissed, did the Claimant cause or contribute to dismissal by blameworthy conduct?

4.6.10 If so, would it be just and equitable to reduce the Claimant’s compensatory award? By what proportion?

4.6.11 Does the statutory cap of fifty-two weeks’ pay apply?

4.7 What basic award is payable to the Claimant, if any?

4.8 Would it be just and equitable to reduce the basic award because of any conduct of the Claimant before the dismissal? If so, to what extent? 5. Direct discrimination because of religion or belief (Equality Act 2010 section 13)

5.1 The Claimant says that she is Muslim. The comparators she relies upon are identified under each allegation. Where no actual comparator is identified the Claimant relies upon a hypothetical comparator.

5.2 Did the Respondent do the following things:5.2.1 Refusing to give the Claimant a pay rise in 2014?

5.2.2 In July 2015 the Claimant taught the same class with Emily Janes. The Claimant says her Performance Management review was marked more harshly than Mrs Janes even though they taught the same class and did the same work.

5.2.3 Putting the Claimant on an unjustified and unevidenced Performance Improvement Plan (“PIP”) in May 2018.

5.2.4 The Deputy Headteacher made a log of everything the Claimant did wrong / mistakes she made in May 2018.

5.2.5 In July 2019 the Headteacher told off the Claimant for starting emails with the word “Hi” whereas she did not do the same with respect to Jane Lambert, Andre Dourado.

5.2.6 In July 2019 the Claimant shared a class with Jo Lee and both of whom did not complete some assessments and did not attend the same staff meeting, however only the Claimant was told off by the Headteacher who criticised her for not improving standards and monitoring special needs children.

5.2.7 At the same time in July 2019 the Claimant was put on a PIP and received threatening letters, whereas Jo Lee was not subjected to this treatment despite sharing a class with the Claimant.

5.2.8 Putting the Claimant on unjustified PIPs in May 2018 and July

5.2.9 In May 2020 the Claimant asked the Headteacher a question following which she shouted at the Claimant and told her to “shush.”

5.2.10 The Claimant was told to rewrite a policy in June 2020 seven times whereas Jane Lambert and Bristi Spinage who were also writing reports did not have to do so.

5.2.11 In June 2020 the Claimant was told to rewrite reports on pupils whereas Jane Lambert and Andre Dourado were not.

5.2.12 The Claimant was put through a disciplinary process in July 2020 for using her mobile telephone at work, whereas Jane Lambert who did the same, was not.

5.2.13 The Claimant was subject to a disciplinary investigation in October 2020 after she forgot to sign out, whereas Andre Dourado and Jane Lambert who did the same, were not subject to this treatment.

5.2.14 The Headteacher telephoned the Claimant on two nonworking days on Monday 5 July and Monday 12 July 2021 to tell her off.

5.2.15 Subjecting the Claimant to disciplinary proceedings in July 2020 and July 2021

5.2.16 In January 2022 the Claimant shared the same school class as Roz Pengelly but only the Claimant was subject to extra performance targets.

5.2.17 In March 2022 the Headteacher directed Saira Imad to log conversations of the Claimant’s discussions in the staffroom, particularly where she spoke of being a Muslim.

5.2.18 In March 2022 the Claimant shared a school class with Claire Jones but only the Claimant was subjected to a PIP.

5.2.19 Issuing the Claimant with management advice in November 2022 when she drove her car in the school car park in front of parents at 4.15pm. a.

5.2.20 The Governors determined that there had been a breakdown in the relationship between the Claimant and the Headteacher and decided to dismiss the Claimant.

5.2.21 Sending the Claimant threatening letters with management advice or making reference to capability procedures from 2014 to 2022, including on the following dates: 16th October 2014, 18th November 2014, 4th June 2018, 26th June 2019, 27th June 2019, 27th June 2019 (second letter),27th September 2019, 29th June 2020, 3rd July 2020, 6th July 2020, 9th July 2020, 20th July 2021, 14th December 2021,19th January 2022, 19th January 2022 (second letter), 4th November 2022, 5th November 2022.

5.3 Was that less favourable treatment? The Tribunal will decide whether the Claimant was treated worse than someone else was treated. There must be no material difference between their circumstances and the Claimant’s. If there was nobody in the same circumstances as the Claimant, the Tribunal will decide whether the Claimant was treated worse than someone else would have been treated.

5.4 If so, was it because the Claimant is Muslim?

5.5 Did the Respondent’s treatment amount to a detriment?

[6]Harassment related to religion (Equality Act 2010 section 26)6.1 Did the Respondent do the following things:6.1.1 Sending the Claimant threatening letters with management advice or making reference to capability procedures from 2014 to 2022, including on the following dates: 16th October 2014, 18th November 2014, 4th June 2018, 26th June 2019, 27th June 2019, 27th June 2019 (second letter),27th September 2019, 29th June 2020, 3rd July 2020, 6th July 2020, 9th July 2020, 20th July 2021, 14th December 2021,19th January 2022, 19th January 2022 (second letter), 4th November 2022, 5th November 2022.

6.1.2 Subjecting the Claimant to disciplinary proceedings in July 2020 and July 2021.

6.1.3 The Headteacher telephoned the Claimant on two non-working

6.1.4 Putting the Claimant on unjustified PIPs in May 2018 and July

6.2 If so, was that unwanted conduct?

6.3 Did it relate to the Claimant’s religion?

6.4 Did the conduct have the purpose of violating the Claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the Claimant?

6.5 If not, did it have that effect? The Tribunal will take into account the Claimant’s perception, the other circumstances of the case and whether it is reasonable for the conduct to have that effect.

[7]Victimisation (Equality Act 2010 section 27)7.1 Did the Claimant do a protected act as follows:7.1.1 Issue a grievance in July 2020?

7.1.2 Issue a grievance complaining about bullying, harassment, and unfair treatment in March 2022?

7.1.3 Issue an appeal against the grievance outcome in October 2022?

7.1.4 Engage in ACAS Early conciliation in November 2022?

7.2 Did the Respondent do the following things:7.2.1 Increase the allegations against the Claimant from two to five in the July 2020 disciplinary investigation.

7.2.2 Terminate the Claimant’s employment in December 2022.

7.3 By doing so, did it subject the Claimant to detriment?

7.4 If so, was it because the Claimant did a protected act?

7.5 Was it because the Respondent believed the Claimant had done, or might do, a protected act?

[8]Remedy for discrimination or victimisation8.1 Should the Tribunal make a recommendation that the Respondent take steps to reduce any adverse effect on the Claimant? What should it recommend?

8.2 What financial losses has the discrimination caused the Claimant?

8.3 Has the Claimant taken reasonable steps to replace lost earnings, for example by looking for another job?

8.4 If not, for what period of loss should the Claimant be compensated?

8.5 What injury to feelings has the discrimination caused the Claimant and how much compensation should be awarded for that?

8.6 Has the discrimination caused the Claimant personal injury and how much compensation should be awarded for that?

8.7 Is there a chance that the Claimant’s employment would have ended in any event? Should their compensation be reduced as a result?

8.8 Did the ACAS Code of Practice on Disciplinary and Grievance Procedures apply?

8.9 Did the Respondent or the Claimant unreasonably fail to comply with it? Annex B below sets out the details of the alleged breaches of the Code.

8.10 If so, is it just and equitable to increase or decrease any award payable to the Claimant?

8.11 By what proportion, up to 25%?

8.12 Should interest be awarded? How much? Findings of Fact 6. We make our findings on a balance of probabilities. Only findings of fact relevant to the issues, and those necessary for the Tribunal to determine, have been referred to in this judgment. It has not been necessary, and neither would it be proportionate, to determine each and every fact in dispute. The Tribunal has not referred to every document it read and/or was taken to in the findings below but that does not mean it was not considered if it was referenced to in the witness statements/evidence and considered relevant. All numbers contained in square brackets are a reference to the page numbers of the agreed bundle. 7. We found the Claimant’s evidence to be inconsistent at times and unreliable. The Claimant had difficulty in referring to recorded facts on the page and would not accept facts that were recorded some time before the hearing even though the Claimant did not have a clear memory of what happened. We do not find that the Claimant was an intentionally untruthful witness, but that she was sometimes caught up in how she perceived her version of events without any regard to the documented contemporaneous evidence of what happened and what she said happened at the time it happened. We found Mrs Bal-Richards to be a truthful witness whose evidence was consistent with the documentation. We found all the Respondent’s witnesses to be witnesses of truth and reliable. The Claimant’s witnesses were unfortunately not helpful in respect of issues that we had to decide. The events that they were being asked to recall took place a long time ago sometimes even as much as 10 years ago. Most of the Claimant’s witnesses could not recall the matters and other witnesses were not in a position to give relevant evidence but only recall what they had been told by the Claimant since the alleged incidents occurred. We considered the witness statements of those witnesses who did not attend, as the Respondent did not contest the content of those statements and gave appropriate weight where their statements contained relevant evidence. 8. The Claimant started working for the Respondent as a teacher from 1 September 2005 at Chater Infant School (‘School’). The School is an average sized infant school including a 60 place Nursery serving the urban community of West Watford. Almost all pupils are from minority ethnic groups, predominately from Asian backgrounds. The ethnic diversity of the community served by the School is considerable with the two largest groups being Pakistani and any other Asian. The largest religion represented is Muslim. Currently 64% of children are of Muslim faith and 36% of all staff are of Muslim faith.

Findings of Fact

[9]When the Claimant started working for the Respondent, the headteacher was Ms Meena Modi. The Claimant asserted that she had a good relationship with all the staff and whilst Ms Modi was the headteacher, she had an outstanding employment history with no disciplinaries, PIPs or management advice. Ms Modi considered the Claimant had good interpersonal skills, was reliable, and a highly capable member of staff, punctual, diligent, and reflective. Ms Modi’s view was that the Claimant had excellent control of English and Urdu along with her quietly confident manner helped to put the parents at ease and eager to support their children. The Claimant was well liked by staff and parents alike. We find that when Ms Modi was referring to the Claimant’s excellent control of English, she was referring to the Claimant’s verbal communication.

[10]In January 2012, Mrs Amit Bal-Richards became the headteacher for the Respondent. Mrs Bal-Richards reported to the governing body of the School. Although not the line manager for all the teachers in the School, Mrs Bal-Richards was responsible for the performance management of all the teachers including the Claimant. The Claimant worked with Ms BalRichards from 2012-2014 without any complaint about any acts of alleged discrimination on the grounds of her religion that she was a Muslim, or any harassment related to her Muslim religion or any complaints at all.

[11]In 2014 there was a 1% pay rise for all teachers, this was applied to the Claimant’s salary. However, in July 2014 during a performance management meeting with Mrs Bal-Richards, the Claimant had asked for a pay rise. It was explained to the Claimant by Mrs Bal-Richards that the pay scale UPS1-2 was not automatic, evidence was needed that the person requesting the pay rise had met requirements that demonstrated they had made a wider contribution in order to progress up the pay scale. The Claimant was told she needed to inform the headteacher in advance at the beginning of the term cycle of her evidence demonstrating the requirements to progress up the pay scale.

[12]The Respondent’s pay policy states at paragraph 6.5.4 “Pay progression within bands will be subject to sustained performance towards the next higher band, and meeting the relevant teacher standards and Professional Skills Level Descriptors for that band. Meeting appraisal objectives will not automatically mean that pay progression will be awarded. Where a teacher’s performance does not demonstrate a sustained level and is below the school’s expectations at that level of post, the governors may determine that no incremental progression will be awarded in that year.” [1049]

[13]Paragraph 6.5.6 of the same pay policy states “The Governing Body has determined that, other than in exceptional circumstances, a teacher would not move to Band 2 (Accomplished Teacher) unless they are able to demonstrate a minimum of 2 years’ teaching experience and including a period of a sustained level of performance at the higher level immediately prior to moving to Accomplished Teacher) or to Band 3 unless they are able to demonstrate 3 or 4 years’ experience and including a period of a sustained level of performance at the higher level immediately prior to, moving to Expert Teacher. [1049]. In 2015 the Claimant was upgraded to UPS2 from 1 September 2015 which resulted in a pay rise. [1154]

[14]The Claimant’s evidence was that she had asked other members of staff who told her that they had not needed to mention at the start of the cycle as referred to in an email from the Claimant to Mrs Bal-Richards dated 23 October 2014 [235] and that she was refused a pay rise by Mrs BalRichards. We find that the Claimant was refused a pay rise in July 2014 by Mrs Bal-Richards because in accordance with the Respondent’s pay policy there needed to be sustained performance which could not be determined without being assessed/ evidenced throughout the year, there was no automatic increase because the teacher had met their appraisal objectives. The Claimant’s performance therefore could not be assessed for sustained performance at the end of the academic year in July. We do not accept the Claimant’s evidence as to what she was told by staff as the Claimant did not say what was said, who she spoke to and when. Furthermore, in none of the Claimant’s emails complaining of the pay rise did the Claimant mention that she believed she did not receive the rise because she was Muslim.

[15]In 2014 the Claimant was the only Muslim teacher at the School. However, in September 2015 Ms Asaria Asghar who is a Muslim started working as a newly qualified teacher. Ms Asghar left the Respondent’s employ in 2017 because she had moved across the country. Following the Claimant’s March 2022 grievance, Ms Asghar emailed Mrs Bal-Richards in June 2022 her view of her time at the Respondent. Ms Ashgar stated that she felt supported by Mrs Bal-Richards and the Senior leadership team when she worked at the School and that the atmosphere was always one of embracing cultures, religions and backgrounds and that they were actively encouraged to incorporate this attitude into the curriculum and their wider learning. As a Muslim, she was always given the opportunity to request time off for any Eid celebrations and was also offered support and adjustments during the month of Ramadan each year. [621] We find that there was no consistent evidence presented to us that Mrs Bal-Richards treated Muslims unfavourably.

[16]Mrs Kossar Ashfaq who is a part time teaching assistant gave evidence stating that she had not witnessed any form of discrimination towards anyone. Ms Ashfaq confirmed that she knew of no other Muslim to have raised any issues whilst working with Mrs Bal-Richards, although she said that the Claimant had raised with her twice that she thought that she was being discriminated against. Ms Ashfaq could not remember the details of what the Claimant said. She denied that the allegation that Mrs BalRichards did not allow water bottles to remain in the toilets was an example of Mrs Bal-Richards being discriminatory against Muslims. Ms Ashfaq said that Muslims were allowed to bring their own bottles of water to cleanse themselves. We find that the Claimant did not mention any where in her evidence that she and other Muslims were not allowed to keep bottles of water in the toilet and that amounted to discrimination on the grounds of religion. The allegation was not put to Mrs Bal-Richards at any point. We find that there is no evidence that Mrs Bal-Richards prevented Muslim members of staff from carrying out the religious cleaning ritual.

[17]The Claimant’s evidence was that a Muslim staff member Ms Yasmin Chaudhry left because Mrs Bal-Richards criticised her communication which was Mrs Bal-Richards applying her stereotypical view of Muslims. We heard no evidence from Ms Yasmin Chaudhry as to why she left. Mrs BalRichards’ evidence was she did not mistreat Ms Chaudhry. She had some concerns that she raised with Ms Chaudhry who was not a qualified teacher but paid as support staff. Mrs Bal-Richards’ concerns resulted from an incident where she could hear high pitched shouting from a room next to her office. When Mrs Bal-Richards went into the room, Ms Chaudhry changed her voice and said, ‘are you ok darling’. Mrs Bal-Richards explained to Ms Chaudhry what the problem was, and she made it clear she did not expect to hear that level of raised voice at a 5 year old. It was following this incident that Ms Chaudhry resigned. Mrs Bal-Richards was told following an observation of Ms Chaudhry’s lesson that there were areas that needed to be improved. There was also an incident where a parent raised a complaint about his child, the child’s shoe ended up on the roof, and the parent was complaining about how the teacher dealt with it, Ms Chaudhry was there at the time. When Ms Chaudhry gave her notice she did not indicate at any time since then or prior to leaving to any line managers or the Deputy Headteacher any issues with her. If Ms Chaudhry raised an issue with governors, it was not raised with Mrs Bal-Richards. We accept Mrs Bal-Richards’ evidence and find that Ms Chaudhry did not raise any issues with any governors about Mrs Bal-Richards. The Claimant did not identify the name of the governor and there was no evidence from Ms Chaudhry about this alleged complaint. We do not accept the Claimant’s evidence that Ms Chaudhry said that she left her employment because of Mrs Bal-Richards’ stereotyping of her as a Muslim or mistreated her because she was a Muslim.

[18]In July 2015, the Claimant job shared with Ms Janes. Ms Janes’ evidence was that on one occasion the Claimant was singled out for harsher treatment and criticism and that this seemed unfounded and unfair. Ms Janes gave evidence that she observed that another teacher Ms Yasmin Chaudhry who was Muslim was also subject to similar treatment from Mrs Bal-Richards. It was not explained what that treatment was. Ms Janes did not say that the reason for the Claimant being treated more harshly than her was because the Claimant was Muslim. She also accepted that she was recalling events in her witness statement more than 10 years after the alleged incident. There was no evidence presented to us of what more harshly meant or even the context of what she was referring to. The Claimant admitted that Ms Janes left in 2016 and her documents were destroyed. We find that in the absence of Ms Janes stating that it was the Claimant’s 2015 performance management review that she considered that the Claimant was treated more harshly, we find there was no harsh treatment by Mrs Bal-Richards of the Claimant in respect of her performance management review in 2015. Performance improvement plans

[19]On 20 July 2016, the Claimant had a one to one meeting with her line manager at that time Mr Dourado. Mr Dourado noted in the record of the one to one “Fatemah said that Mr Dourado’s expectations were too high and that he was the hardest teacher and leader that she had worked with” And “Fatemah said that it was the second time that she has been made to cry by Mr Dourado after been given feedback.” [616]. We find that this record is a clear indication before the Claimant said that she was being bullied by Mrs Bal-Richards, that she had cried on a previous occasion following Mr Dourado’s feedback, Mr Dourado was not happy with the Claimant’s performance and had criticised her before. Following that meeting at the end of the school day, Mr Dourado offered to provide the Claimant with the disciplinary policy, the Claimant refused because she said she had a copy. Mr Dourado discussed the seriousness of the one to one conversation with the Claimant and that an informal discussion would be needed with Mrs Bal-Richards. The Claimant admitted that she found it difficult to keep her opinions under control. [617]

[20]In the follow up meeting with Mrs Bal-Richards, Mr Dourado and the Claimant on 22 July 2016, the Claimant was told that her subject leader skills needed to improve otherwise there could be an issue of capability. The Claimant was warned that there were serious concerns about her conduct which was unacceptable in the gross misconduct category in the disciplinary procedure. Both Mrs Bal-Richards and Mr Dourado considered that the Claimant’s conduct was “wilful refusal to carry out reasonable instructions – marking, work in books, argumentative responses as recorded in meeting on 20/07/16 and also historically with both AD and ABR, disrespectful and insulting manner when talking to AD and historically ABR, unaccepting of decisions made by SLT” [618].

[21]In the academic year 2016-2017, Mr Dourado considered that the Claimant was still not meeting the teaching standards. Mr Dourado records in notes of a performance review meeting on 12 July 2017 that the Claimant had not met one of the standards required [242]. He recorded that “Fatemah has developed skills and strategies with supporting children with significant SEND but is aware that this will be needed to be embedded in her practice and planning in the subjects that she plans for” [241]

[22]In another one to one meeting with the Claimant on 17 November 2017, Mr Dourado records that the Claimant needed to “think about professionalism and what is right for the outcomes of the children.” [619] Mr Dourado told the Claimant “some comments made were completely unprofessional and disrespectful.” [619] Mr Dourado was referring to the Claimant’s comment “‘….you did have Friday to mark too. I know you had meetings but they weren't all day and I wasn't using the books at all on Friday”. The Claimant’s response was that she still finds it hard to act professionally and could not see how the comments made where unprofessional or lacked disrespect. However, the Claimant did apologise. There was a discussion about improving communication. [619]

[23]Following that performance review meeting in 2017, it was Mr Dourado’s view that in 2018 the same concerns raised in 2017 were being repeated by the Claimant and so he referred his concerns to Mrs Bal-Richards [615]. We found Mr Dourado to be an honest and straight forward and credible witness. We accepted Mr Dourado’s evidence that he made a log of all his reports of both strengths and weaknesses including the Claimant. The log provided to Mrs Bal-Richards in May 2018 was just the log of weaknesses. The Claimant’s evidence was Mrs Bal-Richards had imposed on Mr Dourado the requirements to track everything the Claimant did including making a log. Mr Dourado denied this and said that he kept a log throughout the year so that he could use it for performance review for the staff he managed. Mr Dourado denied that Mrs Bal-Richards specifically asked him to make a log of the Claimant’s mistakes. We accept Mr Dourado’s evidence on this point.

[24]Mr Dourado’s concerns were that the Claimant was not planning appropriately for children with SEND, TS 6 where the Claimant was not using the agreed HFL assessment criteria to assess children in subjects for which she had responsibility, TS 8 where the Claimant showed a lack of initiative and teamwork with the Year 2 team [244-245]. Mrs Bal-Richards decided that the Claimant would be put on an informal PIP. Mr Dourado repeated his concerns about the Claimant in his exit interview in 2021 [611- 613] which we find was consistent with the issues that were raised in May 2018. Mr Dourado stated in his exit interview “the school is a good place to work. However, the impact of one teacher’s actions, behaviour and lack of professionalism is damaging the school’s reputation in the local community and professional relationships within the school. This is something that needs to be addressed. The member of staff’s behaviour and lack of professionalism before, during and after the disciplinary investigation was poor and did not lend itself to a good and positive environment to work in.” [613] Mr Dourado confirmed in evidence that he was referring to the Claimant in this exit interview document.

[25]We accept Mrs Bal-Richards’ evidence that it was appropriate for Mr Dourado to refer the Claimant for an informal PIP where there were repeated years of the Claimant’s failure to heed Mr Dourado’s concerns, these were concerns that had been raised about the Claimant’s professionalism and communication. The Claimant accepted that she had a good relationship with Mr Dourado when he was her line manager. She said she had no answer for why Mr Dourado said negative things about her in his exit interview.

[26]On 22 May 2018 [523-524] Mr Dourado had an informal PIP meeting with the Claimant. The Claimant said that the performance targets were contrary to what Mr Dourado told her at the end of 2017. The Claimant said that the performance target regarding “School vision and values” was not evidenced. The objective for this concern was “To respect and adhere to the vision and values (e.g. respect for authority, others, maintaining selfcontrol, managing emotions) set and expected of all staff, children, parents and governors at Chater Infant School”. We find that the performance target of School vision and values was not contrary to what Mr Dourado had told the Claimant at the end of 2017. Mr Dourado had told the Claimant that comments that were made to him were completely unprofessional and disrespectful, we accept Mr Dourado’s evidence that this was in respect of the Claimant questioning what he was doing with his time as deputy head. This had been discussed with the Claimant at the time and was the basis of that particular PIP. We find that the PIP in May 2018 was justified and evidenced.

[27]By letter dated 27 June 2019, the Claimant was put on another PIP. Mrs Bal-Richards stated in that letter that the reason the Claimant was being put on the PIP was because “It is clear that you are not demonstrating the expectations and standards as set out in the Teacher Standards and the vision and ethos that I have created at Chater. I am referring to the following standards:• Promote good progress and outcomes by pupils- Bullet Points 1 and 2

• Make accurate and productive use of assessment- Bullet Points 1 and 1

• Fulfil wider professional responsibilities - Bullet Point 4” [256].

[28]Following receipt of Mrs Bal-Richards’s letter, the Claimant wrote to the Chair of Governors at the time Mr Lamb by email dated 30 June 2019, complaining that she was being unfairly treated by the headteacher and that she wanted it to be investigated. [258]

[29]In the Claimant’s complaint dated 30 June 2019 sent to the chair of governors, the Claimant complained “I am told that I am not professional enough, however I feel it is ones perception. I can give you an example. I was told that starting an email with ‘Hi’ is unprofessional and I should start either start it with ‘good morning or dear’ however the deputy head regularly sends us emails starting hi which is quite contradictory.” [261-262]. Mrs BalRichards’ evidence was that she told the Claimant that quite often she would receive an email from the Claimant with just an attachment and with no wording, Mrs Bal-Richards suggested to the Claimant that the email should have an explanation. Mrs Bal-Richards said she sometimes could not work out what the email was about, and Mrs Bal-Richards gave the Claimant advice about that. The Claimant complained in her evidence that Mrs BalRichards did not pick up Ms Lambert’s use of Hi as a greeting and referred to one of Ms Lambert’s emails dated 19 July 2019 when she used Hi as a greeting [283]. We accept Mrs Bal-Richards’ explanation regarding her advice to the Claimant about the use of hi. The Claimant was not being told she could not use hi as a greeting but to just use hi without any further explanation and with an attachment for example was unprofessional.

[30]By email dated 1 July 2019 [260] Mrs Bal-Richards requested that the Claimant attend a meeting on 2 July 2019 to discuss the performance targets and agree them. The Claimant’s performance targets were set out in a document dated 2 July 2019 [264] referred to Herts assessments and SEND assessments [264]. The Claimant agreed in evidence that the matters set out in the 2 July 2019 PIP were appropriate matters to be addressed if a teacher was failing in them. But the Claimant said that her job share Sara O’Shea and Jo Lee also did not meet the standards set out in the performance targets of the PIP as they also did not complete the assessments. Mrs Bal-Richards explained in her evidence that the reason the Claimant received a performance target in relation to the assessments was because the responsibilities for different areas had been divvied up and the Claimant was to be held to account for her areas which included the assessments. The Claimant’s job share Jo Lee was not on a PIP nor subject to management advice. Mr Dourado agreed that each teacher had designated responsibilities and that the Claimant was responsible for the SEND and Herts assessments. We find that the Claimant did not raise the issue of her colleagues at the time and that is because she knew that it was not her job shares responsibility to carry out the assessments she was being put on a PIP for.

[31]The Claimant complained to Mrs Bal-Richards by email dated 17 July 2019 that she was being targeted and being discriminated against by being put on the PIP as other members of staff were not put on informal PIPs. [279]. We find that the Claimant was not in the same situation as other staff members who were not already on PIPs. There was no evidence any one else was on a PIP in 2018. The Claimant was not demonstrating the accepted standards as set out in Mrs Bal-Richards’ letter dated 27 June 2019 [256] and the standards set as part of the informal PIP in 2018.

[32]Mrs Bal-Richards tried to set up further meetings for the Claimant to attend a PIP to agree performance targets, but the Claimant would not attend. Mrs Bal-Richards sent the Claimant a letter dated 5 September 2019 [286] stating “We did not meet in July as per informal PIP but will meet as set out in the informal PIP on 27 September to review the targets set back in July 2019.” The Claimant said that this later PIP was counted as 2 PIPs when actually it was one PIP because she did not meet Mrs Bal-Richards in July. However, Mrs Bal-Richards explained that there was two PIPs because the PIPs straddled 2 academic years. We accept Mrs Bal-Richards’ evidence on this point as this it is evident in the PIP document which refers to review meetings in July 2019 and September 2019. [525-527]

[33]The Claimant had informal PIPs throughout 2021. The Claimant signed the performance management form covering targets set in October 2021 and January 2022 [499].

[34]Following an incident on 25 February 2022, where the assistant headteacher, Ms Patterson raised a concern about a mark on a child’s forearm with Mrs Bal-Richards, Mrs Bal-Richards asked the Claimant to query this with the parent at pick up time. The Claimant agreed this was appropriate and did not raise any concerns about meeting with the parent at the end of the day which was a Friday. However, Mrs Bal-Richards received the Claimant’s written record of the meeting (through CPOMS) during the weekend. This raised an immediate concern that the child was put at risk and there was a failure to safeguard him as this had not been raised verbally with either Mrs Bal-Richards or Ms Jones at the end of the school day on the Friday. Mrs Bal-Richards concern about this incident was not the failure to raise this verbally as it was accepted that in the busy school day things can be missed and mistakes are made, it was the minimising of the importance of following school guidelines to safeguard the children.

[35]Mrs Bal-Richards considered that those concerns in respect the 25 February 2022 incident, led her to put the Claimant on an informal PIP [669- 671]. Mrs Bal-Richards met with the Claimant regarding the PIP on 4 March 2022. At that meeting the Claimant said that if she were put on a PIP, she would bring a grievance against Mrs Bal-Richards. In an email dated 7 March 2022, the Claimant says that the PIP is just another way to get more evidence to get rid of her and she is not willing to partake in the PIP [462]. The Claimant states in that email “if this cannot be resolved amicably, I will be compelled to take the matter further as I really would like the bullying to stop.”

[36]Mrs Bal-Richards’ evidence was that the PIP in March 2022 was instigated because of the Claimant’s attitude and the undermining of her authority as Headteacher. Mrs Bal-Richards considered that the Claimant displayed a lack of acceptance that it was her duty to safeguard the child by raising concerns following her discussion with the parent immediately with either her or her line manager. [522] The Claimant said that she was on more performance targets than Roz Pengelly who was her job share. The Claimant did not job share with Claire Jones who was the deputy head at the time. Ms Pengelly was the Claimant’s job share. Ms Pengelly’s evidence was that she was not aware of how many performance management targets the Claimant was on and she was not on a PIP. But she was on performance management and did have additional targets to reflect this. For the first time during the hearing, the Claimant raised Ms Patterson, assistant headteacher as the appropriate comparator regarding the March 2022 PIP. We find that Mrs Bal-Richards had genuine concerns about the Claimant’s lack of acceptance of responsibility in failing to speak to the parent immediately concerning the 25 February 2022 incident. At no point did the Claimant acknowledge Mrs Bal-Richards’ concerns regarding her breach of safeguarding procedure. The Claimant’s email dated 7 March 2022 appeared to blame Mrs Bal-Richards or Mrs Patterson for not calling the parent straightaway. It was therefore justifiable for Mrs Bal-Richards to put the Claimant on an informal PIP. We find that the Claimant had no evidence about how many performance targets that Ms Pengelly was on, so could not know whether she was on more or less than Ms Pengelly. Ms Pengelly did not try to undermine the headteacher nor were there complaints about safeguarding against her where she failed to appreciate those concerns. The Claimant accepted that Ms Patterson was not on a PIP. There was no reason put forward as to why Ms Pengelly should be put on an informal PIP whilst there were justifiable reasons for the Claimant being put on an informal PIP.

[37]On 14 May 2020, the Claimant complained to Mrs Bal-Richards that she had told the Claimant to shush. When it was put to the Claimant that actually Mrs Bal-Richards told the Claimant to be quiet because she was being argumentative and ranting and Mrs Bal-Richards asked her to stop, the Claimant’s response was that Mrs Bal-Richards was literally shouting at her and that the Claimant was apologising to her. We find that Mrs Bal-Richards did tell the Claimant to say shush as Mrs Bal-Richards did not deny doing so in her evidence, but only because the Claimant was being argumentative and ranting, as the Claimant did not deny this was the case when it was put to her.

[38]On 2 June 2020, Mrs Bal-Richards emailed the Claimant to look at her ICT and Computing policy [295] again and make some changes to the policy. The Claimant was told to review the policy 7 times. It was the case that Bristi Spinage another teacher and Jane Lambert did not have to rewrite a policy seven times. Mrs Bal-Richards’ evidence was that Ms Lambert and Ms Spinage required less support to write high quality policies than the Claimant and that the intention of asking the Claimant to review the policy was to ensure high quality policies. Mrs Bal-Richards gave an example of asking another teacher to change her policy. For example when on 8 June 2022, she emailed Roz Pengelly about her Relationships and Health Education policy, making comments asking Ms Pengelly to change a number of things about the policy [544-548]. We accept Mrs Bal-Richards’ evidence on this point.

[39]On 24 June 2020 [297] staff were asked to make amendments to the pupils’ annual class reports. The practice was for Mr Dourado to ask to see one report of the Claimant and to use that as an example of how the Claimant could improve her reports. Mrs Bal-Richards would also ask to see one report and make comments on it. However, there was a deadline for the final reports to be submitted to the headteacher by Friday 26 June 2020. On Sunday 28 June 2020 Mrs Bal-Richards sent the Claimant an email at 09:15 [298] requesting that the Claimant make further changes to the class reports. The Claimant’s evidence was that the further changes were not asked of other teachers like Mr Dourado and Ms Lambert who made the same mistakes as the Claimant. When issues with her report was raised with the Claimant in a later email on Sunday 28 June at 15:56, the Claimant responded later on Monday 29 June 00:21, that Ms Lambert had made the same typo as her in her report and refused to make any further changes to the reports [301]. Furthermore, the Claimant was expected to work on Sunday as Mrs Bal-Richards gave a deadline of the end of the day on Monday 29 June 2020. The Claimant considered that it was unfair for Mrs Bal-Richards to expect her to work on a Sunday when the Claimant’s contract of employment was part time [239-240] and Sunday was not part of her working time. Mr Dourado gave evidence that he was called outside working hours, which we accept.

[40]Mrs Bal-Richards explained in her evidence that there is an expectation that reports are well written and each year it is always a challenge to get the reports written, proofread, changes made and then sent out to parents. Teachers require differing levels of support. Jane Lambert and Andre Dourado required significantly less feedback support to write high quality reports than the Claimant. There was no intention to treat the Claimant less favourably, simply the intention to ensure all reports to parents are well written. Mrs Bal-Richards also criticised other teachers in respect of their reports, for example when Mrs Bal-Richards criticised Ms Spinage’s school report in July 2022. [553-554]

[41]We accept Mr Dourado’s evidence that he had been asked by Mrs BalRichards in the past to re write a report and that he had cause to criticise the Claimant’s reports in the past. We find that Mrs Bal-Richards criticised policies and reports based upon the content not who wrote the policy or report, and the Claimant was not the only person whose reports were criticised. We therefore accept Mrs Bal-Richards’ evidence on this point.

[42]Although there are mistakes made by the Claimant that were also made in reports by Mr Dourado and Ms Lambert, Mrs Bal-Richards’ evidence was that the Claimant’s report sentences did not make sense and so typos in other reports were not as concerning as the Claimant’s mistakes. Mrs BalRichards said she did not compare one set of reports with another and in general Mr Dourado’s and Ms Lambert’s reports were of a high standard. Mrs Bal-Richards denied that she only picked up on mistakes when she knew that the Claimant had written the report. Mrs Bal-Richards denied that she had a stereotypical view of the Claimant’s reading and writing skills as a Muslim. We accept Mrs Bal-Richards’ evidence on this issue as Mr Dourado also raised issues with the Claimant’s reports, telling the Claimant in an email dated 7 May 2020 “just make sure that you read it carefully so that is accurate but reads professional”. [290] By letter dated 5 October 2020 [359-360], Mr Dourado provided a statement setting out the report writing process at the School. Mr Dourado stated in that statement that “also provided feedback to Mrs Ravji in June 2019 regarding the quality of her reports.[….] The same feedback was also shared with Mrs Ravji’s coteacher in Year 1. I raised my concerns with the Senior Leadership Team regarding the quality of report writing and the subsequent unprofessional behaviour that followed from both members of staff.” [360] Although the comments were not as detailed as the ones raised by Mrs Bal-Richards, there were of the same theme and the Claimant did not allege that Mr Dourado had a stereotypical view of her as a Muslim. Disciplinary investigation 2020

[43]By letter dated 3 July 2020 Mrs Bal-Richards sent the Claimant a letter inviting her to attend an investigation meeting to answer the following allegations of “• Refusal to carry out instructions given from the Headteacher on 29.06.2020;• Sharing content of an email addressed to the Headteacher with other member of staff on either 29.06.2020 or 30.06.20”. The letter also stated “However, should other issues emerge during the course of the investigation I reserve the right to change or add to these allegations as is appropriate.” [312] We find that the Claimant was put on notice that it was open the Respondent to add to the allegations being investigated.

[44]Mr Dourado and Mr Lamb were appointed to investigate the disciplinary investigation. Mr Dourado sent the Claimant a letter inviting her to attend an investigation meeting. [318]

[45]By letter dated 13 July 2020 [323], Ms Madhuri Agate the Chair of governors wrote to the Claimant to say that John Lamb would be conducting the grievance and disciplinary investigation and they would be dealt with concurrently and that he may need to meet with the Claimant as part of the investigation. In the end, Mr Dourado met with the Claimant.

[46]In July 2020, Mrs Bal-Richards was made aware that the Claimant was using a mobile phone in an undesignated place with children present on 15 July 2020. Mrs Bal-Richards’ evidence was it was a rule in the school that once you go into children’s areas there are no mobile phones for safeguarding reasons. Mrs Bal-Richards was not made aware at any time before 15 July 2020 nor were any of the senior leadership team (‘SLT’) of Jane Lambert using her phone in an undesignated place with children present. It was in September 2020 when Ms Lambert admitted in a staff meeting that she had used her phone in the classroom, and she was unaware of the rule. Mrs Bal-Richards’ evidence was that if Jane Lambert had used her phone when children were present, and this had been brought to hers and the SLT’s attention, Ms Lambert would also have been given an appropriate sanction. Mrs Bal-Richards was unaware at the time that Ms Lambert had used her phone in such a context. Mrs Bal-Richards considered the Claimant’s use of a mobile phone in this context a failure to follow reasonable management and organisational instructions and procedures. The Claimant’s evidence was that she did not know there was a rule that you could not use mobile phones in classrooms and that she was away from children and it was during her break time.

[47]The remit of the disciplinary investigation was into 2 allegations set out in a report. The first allegation was a refusal to carry out instructions from the Headteacher to complete end of year reports after 3 requests were made via email (the following dates that the Claimant refused to complete the reports were on 28.06.20 and twice on 29.06.20 and the second allegation was the sending or sharing an email addressed to and/or from the Headteacher (ABR) to at least one work colleague (29th June 2020) [330]

[48]A report was produced on 28 August 2020 (during the summer holiday) [329-334]. The report concluded “There is strong direct evidence that supports the first allegation. There are minor mitigating factors around whether all reports were required to be of a similar quality and whether further changes would be requested. 6.2 There is strong evidence that supports the second allegation. However, it is distinctly unclear whether this is an example of misconduct, and whether FR could or should have been aware if it was.” [332]

[49]By email dated 23 November 2020 [381] Ms Ash Patil wrote to the Claimant to confirm the findings of the disciplinary investigation into the Claimant’s conduct [375- 378]. The decision was not to escalate the matter to a formal disciplinary, but findings were made on 5 allegations, 3 of which were not part of the original remit of the disciplinary investigation. [599-602] Mrs BalRichards’ evidence was that these extra allegations were added because the matters came to Mrs Bal-Richards’ attention and the Claimant’s conduct was an on going concern. Mrs Bal-Richards did not raise the matters earlier as the Claimant had raised her grievance and she was advised that the matters would have to wait. We accept Mrs Bal-Richards’ evidence on this point.

[50]The first additional allegation was the third allegation in the disciplinary outcome letter which stated, “Sent an intimidating text message to a staff member and asked the staff member not to communicate with the SLT.” [376] The outcome was that there was no intimidating text but the Claimant did ask a colleague not to communicate with SLT but there was nothing illegitimate about this request.

[51]The second additional allegation, which is the fourth allegation in the disciplinary outcome letter states, “Threatened to pervert the schools' annual report writing process, in a meeting where your line manager was present, through disruptive behaviour.” This allegation was found and was considered inappropriate conduct, and the Claimant was to be issued management advice in relation to this allegation. Management advice was issued in relation to the allegation by letter dated 24 November 2020 [382- 383]

[52]The final additional allegation was the fifth allegation in the disciplinary outcome letter which stated, “failed to follow school policy and procedure to enable the smooth and safe running of the school, including use of a mobile in a classroom and failing to sign in/out”. The letter recorded that the Claimant “accepted that, on 6th and 22nd July 2020 you failed to correctly follow the school’s signing in process” [377]. The letter also recorded that the Claimant admitted that she used a mobile phone in the classroom on 15 July 2020 [377]. The letter also stated that management advice would be issued as per the informal stages of the school’s disciplinary policy to deal with this concern. Management advice was issued in relation to this allegation by letter dated 24 November 2020 [382-383]

[53]The Claimant accepted in evidence that she had neither signed in or out on 6 & 22 July 2020. Mrs Bal-Richards’ evidence was that the Claimant did not sign in or out regularly, and Ms Lambert and Mr Dourado did not sign in or out on occasion. Mr Dourado also agreed with Mrs Bal-Richards in his evidence about the Claimant regularly not signing in or out especially on her non working days. He gave evidence that he did fail to sign in or out on occasion but there was a reason for this, and it would be for example that the caretaker closed the door and was spoken to by Mrs Bal-Richards when he did not sign in or out. We accept Mrs Bal-Richards’ & Mr Dourado’s evidence and find that the reason why the Claimant was subject to investigation was because she regularly did not sign in or out, but Ms Lambert and Mr Dourado only occasionally failed to sign in or out.

[54]Overall, 3 out of the 5 allegations made warranted management advice according to the disciplinary outcome letter. Mr Patil wrote to the Claimant later on 24 November 2020 in an email that stated “it is best in the interest of all and above all the school to start afresh in a reconciliatory approach than to dig out old allegations and go over these again”. [379]

[55]The Claimant was issued with management advice in the letter dated 24 November 2020 [375-378] in relation to preventing the school reports process, the use of the mobile phone in a classroom, threatening the School with going to the media, sharing a draft email and failing to follow reasonable instructions to make changes to school reports on 29 June 2020 and undermined the headteacher on 18 September 2020. We find that the Claimant was put through a disciplinary process because the allegations against her were legitimate matters to investigate. It was school policy that mobile phones are used only in designated areas and the classroom was not a designated area. Ms Lambert was not put through the disciplinary process because Mrs Bal-Richards did not know about Ms Lambert’s admission at the time. The matter was not raised with her at the time regarding Ms Lambert nor with any one in senior leadership. The Claimant had been spoken to about signing in or out on previous occasions by Mrs Bal-Richards and the Claimant had not heeded the warnings. The Claimant had failed to follow reasonable management instructions in making changes to the School reports, the Claimant understood that the School reports needed to be easily read by the parents and should be the best they could be. We find it was legitimate to investigate the Claimant for threatening to contact the media as this was not in compliance with the School’s whistleblowing policy. Grievance 2020

[56]On 6 July 2020, the Claimant raised a grievance. [314-317] The Claimant referred to being treated unfairly by Mrs Bal-Richards, but she did not mention that she considered that the unfair treatment was because she is Muslim. The Claimant complained that Mrs Bal-Richards was overly criticising her reports and her drafting of the ICT and computing policy. The Claimant also said that Mrs Bal-Richards was sending her threatening letters e.g. an email of misconduct [315]. The Claimant also complained that she had been warned about disciplinary procedures.

[57]The Claimant attended a grievance hearing on 22 July 2020. The Claimant did not contest that she attended this grievance meeting. The Claimant was given a written outcome of the grievance by letter dated 4 September 2020 [335]. The outcome letter referred to the Claimant’s first allegation as unfair treatment from Mrs Bal-Richards and the second allegation as threats to the Claimant from Mrs Bal-Richards. The outcome was that the Claimant’s grievance was not upheld. The Chair of Governors Ms Madhuri Agate states in the letter “There is some indirect evidence that supports the first allegation. The strongest witness statement comes from a former teacher and therefore may need to be balanced against potential bias. There are clear signs of a poor relationship between the ABR and FR which may affect how each approach situations involving both parties.• There is no strong evidence that supports the second allegation. ABR appears to have followed HFL procedures.”

[58]The Claimant appealed the outcome of the grievance by email dated 7 September 2020. [336]

[59]At the grievance appeal meeting on 15 September 2020 [342-350] the Claimant does not mention that she believes that she has been treated unfairly by Mrs Bal-Richards because of her religion. The Claimant does ask for mediation between her and Mrs Bal-Richards. [346] The Claimant also refers to being aware of a PIP in place in 2018/19 which related to when Mr Dourado was her line manager and was supporting her through her period of depression. [349]

[60]By letter dated 18 September 2020, Natalie Beere, a governor and Chair of the grievance panel informed the Claimant that her appeal was not upheld. [351-355]. The letter stated, “taking all evidence as a whole, we cannot find that you were unfairly treated by the Headteacher, however we do find that the high standards applied by the Headteacher to your work was not consistently applied to all.” [352]. The letter also stated “Without evidence, the panel could not find that the standard applied was proportionate or excessive. Further, we found that it is within the Headteacher’s remit to set standards and seek levels of acceptable quality within the school,”[352].

[61]The grievance appeal panel also made recommendations as follows: 1 . That we will ask the Headteacher to review the processes and school-wide guidance for completing formal written reports to ensure that there is clarity and reasonable expectation throughout, but especially amongst SLT so that they may provide timely feedback and review consistent with the Heads standards. This will be worked on in conjunction with, and signed off by the governing body. 2. That we seek to appoint an external mediator to support yourself and the Headteacher in agreeing mutually agreeable methods of communication, discussing working practice and providing and receiving constructive feedback to each other. 3. That any feedback meetings between yourself and the Headteacher should be documented in an informal manner. By this, we do not mean the presence of a note taker but that you mutually agree one party will provide a brief written summary in a timely manner. The note taker will likely be the Headteacher more often, but this can be agreed, as the subject matter requires. 4. That the governing body will review how the whole school can be supported to increase their skills and confidence in giving feedback to others, including upwards, and in having difficult conversations. 5. For yourself, we would recommend documenting your own summary of discussions and events for your records. We would advise that any feedback you give verbally to the Headteacher be followed up in writing.” [355]

[62]Following the appeal grievance panel’s recommendations, Kim Cook, a governor was appointed to help implement the grievance appeal panel’s recommendations. Ms Cook met with the Claimant on 2 October 2020 [358]. Ms Cook’s evidence was that she had acted to ensure that the recommendations were implemented. Ms Cook met with the governing body and Mrs Bal-Richards on 15 December 2020 to discuss the implementation [388]. We find that the recommendations were predominately for the governing body to implement not the headteacher and the governing body did implement the recommendations. Mediation

[63]On 10 December 2020, the Claimant had a mediation meeting with an independent mediator. Mrs Bal-Richards also had a meeting with the mediator on the same day. The Claimant and Mrs Bal-Richards also had a 2 hour joint session with each other and the mediator where the following was agreed “To enable the school to be run in an efficient and safe manner there are rules and values that must be upheld with respect and good grace. The difference of opinions should be met with empathy; time should be taken to reflect on such matters and any challenge should be made in a respectful and polite manner.” [384]

[64]It was also agreed that “Fatemah will arrange regular meetings with her Line Manager Claire Jones. This time will be used to give and receive feedback and praise as appropriate. Fatemah will ask Claire to cast an eye over her written work whilst she is rebuilding her confidence and growing her selfesteem. Amrit will share and pass on praise to Fatemah as and when she becomes aware of examples of Fatemah’s positive work.” We find that the recommendation for Mrs Bal-Richards was only to pass on praise and positive work to the Claimant, not to praise the Claimant herself but in any event we find that Mrs Bal-Richards did give praise of the Claimant’s positive work in the February review meeting in 2021 where Mrs BalRichards said about the Claimant that “Fatemah is managing in these challenging times.” “Fatemah works hard with every child”. In the meeting 15 July 2021, Mrs Bal-Richards records “ Fatemah regularly looks at Pinterest for ideas and general reading. Fatemah has adapted to teams, especially home learning opportunities. Fatemah is pleased with the progress of the class. Well done, Fatemah.” [427-428]. We find that these comments demonstrate that Mrs Bal-Richards did give the Claimant positive comments following the recommendations of the mediator and the grievance appeal panel. Alleged threatening management advice

[65]The Claimant said that the letters sent by Mrs Bal-Richards were threatening. The Claimant referred to correspondence of 16 October 2014 [232],18 November 2014 [237-238], 4 June 2018 [246], 26 June 2019 [250], 27 June 2019 [254], 27 June 2019 (second letter) [256-257], 27 September 2019 [289], 29 June 2020 [289], 3 July 2020 [302], 6 July 2020 [318], 9 July 2020 [320], 20 July 2021 [398], 14 December 2021[435-436], 19 January 2022 [446], 19 January 2022 (second letter) [447-448], 4 November 2022 [769], 9 November 2022. We find that none of these letters are threatening in content, they just reminded the Claimant about the policies that applied if the Claimant’s performance or conduct did not improve. We find that Mrs Bal-Richards had justifiable reasons for the issuing of the management advice and referring to the disciplinary procedure. None of the management advice amounted to disciplinary action. We find that the reference to management advice on 5 November 2022 was actually 9 November 2022 and that was not management advice at all, but an explanation of the management advice issued on 4 November 2022. We find that 4 June 2019, is not management advice and does not refer to any capability procedures. The letter 29 June 2020, 3 July 2020, 6 July 2020, 9 July 2020, 20 July 2021, specifically refers to disciplinary conduct, but there is no reference to the capability procedure nor management advice. The 14 December 2021 letter does not refer to capability or management advice as performance review is not part of the capability procedure. Disciplinary 2021

[66]By letter dated 20 July 2021 [398-399] from Mrs Bal-Richards, the Claimant was invited to attend a disciplinary investigation to address 2 allegations, that “1) That on or around 02.07.2021 you may have breached confidentiality by providing your son information about a staff appointment, who subsequently shared that information with his Year 6 class, prior to this information being more widely circulated within the school community. 2) That on or around 08.07.2021 you may not have communicated in a professional manner when communicating concerns with a parent.” [398]

[67]On Monday 5 July 2021 Mrs Bal-Richards called the Claimant on the phone to ask her about whether she disclosed to her son the fact Mr Dourado was leaving the School. The Claimant explained that she had told her husband, and her son must have over heard. [391]. We find that the Claimant was being told off for sharing the information even though the email dated 2 July 2021 informing staff about Mr Dourado’s promotion to headteacher at another school did not say the information was confidential [422]. We accept Mrs Bal-Richards’ evidence that she believed that the information was a School matter that only went to the school community not the parents, governors etc and that was because it was a staffing matter and she did not need to specifically put that in the email. But we find that it was not fair to tell the Claimant off for telling her husband about Mr Dourado leaving the school. Mrs Bal-Richards did not say that Mr Dourado’s leaving was confidential and so there was no fault in the Claimant telling her husband which was over heard by the Claimant’s son. However, the reason why the Claimant was told off was because Mrs Bal-Richards received a complaint from Mr Dourado who was upset about his information being shared and that he considered that it was a staffing matter that was not to be shared outside the School.

[68]On Monday 12 July 2021, Mrs Bal-Richards called the Claimant to explain that there had been a complaint about the Claimant’s behaviour towards a parent. [391] We find that Mrs Bal-Richards did not tell the Claimant off in the telephone conversation. The note of the telephone conversation was not challenged by the Claimant and does not refer to any telling off.

[69]A disciplinary investigation took place in respect of allegations that a parent had complained about the way that the Claimant had spoken to her in front of other parents on around 12 July 2021, and that the Claimant shared information about Mr Dourado leaving the Respondent. [419-426] The outcome of the investigation was dated 21 September 2021, which found there was no case to answer. Mr Steve White, the chair of governors at the time, issued the outcome letter dated 24 September 2021. The Claimant was not given a disciplinary warning in that letter. The letter stated that “there was no prima facie disciplinary case to answer in regards to the two matters under investigation”. [430] We find that the matters that were investigated were legitimate to investigate.

[70]On 10 December 2021, the Claimant took children attending the School to the theatre. However, one of the support staff on the trip (Mrs Bal-Richards’ daughter) raised with Mr Dourado her concern that the Claimant was not being safe with the children on the walk to the theatre. [522]

[71]On 31 December 2021, Mr Dourado left the Respondent to work as a Headteacher at another school. Before he left, Mr Dourado completed an exit interview. [611-614] In that exit interview document Mr Dourado stated that “One member of staff (FR) that I have line managed in KS1 has been extremely difficult, lacked professionalism and been disrespectful on a number of occasions.” [612] Also he stated “it was extremely challenging and stressful dealing with informal capabilities meetings with this member of staff, followed by the disciplinary investigation. [612] Mr Dourado then went on to write “Confidentiality is crucial working in a school. I was extremely disappointed and upset that confidentiality about my promotion to Headteacher and leaving Chater Infant School was leaked by FR to children and staff at Chater Junior School 6 months before I took up the post. This left me in a vulnerable position being questioned by parents on hearing the news and the impact on my role at Chater. Confidentiality needs to be improved with this member of staff. [613] We accept Mr Dourado’s evidence that he was not influenced by Mrs Bal-Richards in any way in his writing about the Claimant in the exit interview. Grievance -March 2022

[72]The Claimant refused to engage in the informal PIP in March 2022. The Claimant admitted that she did not read the PIP at the time as she thought that the PIP was being done to get rid of her. The Claimant’s evidence was that she believed that Mrs Bal-Richards directed Saira Imad to log conversations about the Claimant’s discussions in the staffroom particularly where she spoke of Muslims. We find that there is no evidence from Saira and no written log that we were provided with. We do not accept the Claimant’s evidence as she had no supporting evidence that we would expect to see in respect of this matter. Mrs Bal-Richards denied asking anyone to make a log of the Claimant’s discussions in the staff room. Mrs Bal-Richards said that a complaint had been made to her about the Claimant’s poor driving. She needed to ask other members of staff present who heard about the poor driving example, she asked Saira as she needed to hear from someone else about what they had heard. She did not raise the matter with the Claimant in any event. We find Mrs Bal-Richards to be a truthful and consistent witness and we accept her evidence on this point.

[73]The Claimant submitted a grievance dated 15 March 2022 [466-468] to Mr White as the chair of governors. In that grievance the Claimant complained of bullying and harassment in the last 4 years. She referred to her September 2020 grievance being partially upheld and that it was accepted that the Claimant was under more scrutiny than other members of staff and had been treated unfairly compared to other members of staff. The Claimant stated that in July 2021 she was given another disciplinary warning and the findings from the investigation were unfounded and there was no case to answer. The Claimant also complained that having further targets added to her performance management at the end of January 2022 amounted to Mrs Bal-Richards over criticism and finding fault with everything the Claimant did constituted bullying in the workplace. The Claimant said that “she was beginning to feel that she may be discriminated against due to faith” [467].

[74]In the grievance the Claimant relied upon being the only Muslim teacher and being treated differently to her colleagues. Her examples were criticism in her writing of reports when they contained the same words used by colleagues, being issued with extra targets when her non Muslim job share did not have extra targets. The Claimant stated that she had many other examples of being treated differently. The Claimant also referred to not experiencing unfair treatment by her previous headteacher who was Jain. The Claimant complained about the contents of settlement that were proposed to her. In the grievance, the Claimant says the outcome she wanted was suspension of Mrs Bal-Richards and that she had considered mediation.

[75]Following the Claimant’s grievance, temporary measures were put in place for Claire Jones to directly manage the Claimant and deal with any communications from Mrs Bal-Richards to the Claimant. The Claimant was invited to attend a grievance investigation meeting on 27 April 2022 which the Claimant attended with a work colleague. [487-504] The Claimant’s main complaint was the letters from Mrs Bal-Richards which the Claimant said were threatening to put her under disciplinary or capability action.

[76]The Respondent instructed Judicium to investigate the Claimant’s grievance. Mr Andrew Southwell from Judicium was the investigator. The Claimant accepted in evidence that she did have a meeting with Mr Southwell who interviewed her in respect of her grievance.

[77]In the grievance meeting that the Claimant had with Mr Southwell, it was explained to the Claimant that the outcome of the appeal of the September 2020 grievance was that the Claimant’s first allegation that she received unfair treatment by Mrs Bal-Richards was not upheld. In response the Claimant said that she was confused. The appeal outcome letter was quoted to the Claimant as “the panel found that the letters written to you by the Headteacher were a reasonable part of an informal management process”. The Claimant was asked whether agreed with this fact. The Claimant stated, “that the letters were reasonable but that they were quite emotive.” [490] The Claimant also stated that “she has received other letters where she has been given management advice without a formal investigation taking place beforehand”. The Claimant was recorded as saying she thinks this “is more reasonable and that the process needs to be reasonable.” [493]. The Claimant also stated in the meeting that in respect of the disciplinary investigation in 2021 she was not happy with the letters sent about the disciplinary investigation but she was fine with the management advice issued. [495] The Claimant also clarified that the threatening letters referred to in her grievance were the disciplinary investigation letters not the management advice letters.[495]

[78]The Claimant was asked in the grievance investigation meeting whether she had specific examples of unfair treatment related to her religion and the Claimant said no, unfair treatment was just happening in general. [500]

[79]Mr Southwell reported on 15 July 2022 [723-746]. Mr Southwell’s summary findings are found at pages 744-751. Mr Southwell found that “there is evidence that there have been consistent and ongoing concerns with regard to FR’s conduct and performance, specifically towards ABR, and that FR is resistant to attempts to manage these concerns” [746] and that “Concerns regarding FR’s communication with ABR and others were also not only raised by ABR, but also by CJ as FR’s line manager, and RP as FR’s job share partner. There were also no apparent concerns with any other members of staff.” [746] Colleague Complaints

[80]On 5 May 2022, Ms Pengelly wrote to Mrs Bal-Richards to request that she change her job share partner, who was the Claimant at the time [606]. However, in her investigation interview, Ms Pengelly said that she had made the request due to her teaching style and that she no longer wished to change her job share partner. Ms Pengelly’s evidence was that she independently wanted to change job share. She was not asked to write in, she was only asked if she could put her request in writing. Ms Pengelly explained in her evidence why she changed her mind about the job share. She said that she thought that she was conflicted at that time, working with the Claimant as a teacher professionally and as a friend.

[81]By email dated 9 June 2022 [549], Ms Jones complained to Mrs BalRichards that the Claimant showed little to no respect to Mrs Bal-Richards as headteacher and that there was a complete lack of trust. Ms Jones wrote in her email “As a school we have provided Fatemah with a considerable amount of support, unfortunately to no avail. I now have succumbed to the conclusion that we have exhausted all tools available to us to support Fatemah in trying to resolve the difficulties we face.” [549] Ms Jones referred to the Claimant as “unmanageable” and stated “ This to me is unsustainable and the proposed working arrangement has no longevity.” [549] Ms Jones’ evidence was that she initiated a conversation with Mrs Bal-Richards on 7 June 2022 about the Claimant which she was asked to put in writing by Mrs Bal-Richards, which is why she wrote email on 9 June 2022.

[82]By email dated 9 June 2022 [550-551], Ms Peterson also wrote an email to Mrs Bal-Richards explaining why she was apprehensive about working with the Claimant as a job share in reception for the following academic year. Ms Peterson considered the Claimant unprofessional when pulled up, unenthusiastic, failed to reciprocate gestures made to her and left Ms Peterson to control things many times despite the Claimant being the more experienced teacher (e.g. trips, talking to parents, organising things). Ms Peterson explained in her evidence that the email came off the back of a conversation. She was on maternity leave and she had her first ‘keeping in touch day’ and she did not get a chance to catch up. She was discussing a change of a role to nursery. It was in that context that Ms Peterson expressed her concerns with the job share arrangement. She knew it left limited options and she said that she was only anxious that she was being asked to record her concerns but she did it willing so that it could be acknowledged.

[83]Mrs Bal-Richards’ evidence was that she did not request that any of these teachers provide comments against the Claimant. We accept Mrs BalRichards, Ms Pengelly, Ms Paterson and Ms Jones’ evidence on this point. We find that the teachers working with the Claimant had genuine concerns about working with the Claimant. Events leading up to consideration of dismissal hearing

[84]By letter dated 19 July 2022 [747-752], the Claimant was informed of the outcome of her 15 March 2022 grievance. The outcome letter repeated for the most part the findings of Mr Southwell. In the email that attached the outcome letter [754], Mr White explained that Mr Southwell had highlighted some areas of concern that as the chair of governors Mr White was obliged to report. The Claimant immediately appealed by email dated 19 July 2022 on the basis that there was information in the letter that was “untrue”. [753]

[85]Mr White had discussions with the School external HR provider, Judicium from 18 July 2022 regarding settlement or the some other substantial reason (‘SOSR’) procedure in respect of the Claimant’s employment. Mr White wrote an email dated 19 July 2022 to the rest of the governing body indicating that it was his view that “There is clear breakdown in trust between all parties mentioned in the report which was irreconcilable before the allegation, and now will now continue to cause serious problems for the school going forward. Including potential loss of senior staff.” [1204-1206]. We find that this email demonstrates the Respondent was considering SOSR, if settlement was not possible with the Claimant in or around 18 July 2022.

[86]As the Claimant had indicated that she would like to appeal, discussions on SOSR hearings were paused by the governing body and no further conversations took place at that time. The Claimant’s grievance appeal was received on 26 July 2022 [755-758]. We find that in the appeal document the Claimant talks about being put under extreme scrutiny and this is workplace bullying and then makes a reference to a Muslim teacher resigning because of her treatment by the headteacher but does not expressly connect the alleged treatment of the Muslim teacher to herself. The grievance appeal letter contained a reference to contacting ACAS [774]. The Claimant gave evidence that she contacted ACAS on 5 November 2022. The Claimant did not give any evidence on what she told ACAS and there was no evidence in the bundle other than without prejudice correspondence evidence of what the Claimant said to ACAS. We find that the Claimant did not give evidence that she told ACAS she was bringing a claim under the Equality Act 2010 of religious discrimination against the Respondent or any kind of words to that effect.

[87]The School then broke for the summer holidays. The Claimant was invited to attend a grievance appeal meeting by letter dated 15 September 2022 [760-761]. The Claimant’s appeal was held on 29 September 2022. By letter dated 17 October 2022 [761-767], the Claimant was informed that her grievance appeal was not upheld. The letter requested Ms Bal-Richards to conduct an informal meeting with the Claimant. We accept Mr White’s evidence was this was seen as a last attempt to reconcile the relationship.

[88]On 4 November 2022, Mrs Bal-Richards was informed that the Claimant manoeuvred her out of the car park, putting children and adults at risk. The complaint about the Claimant’s driving had come from a parent. The Claimant was issued with management advice [769]. The Claimant followed the receipt of the management advice with an email [770] saying that she was not aware of any problem with her manoeuvres, but she did not in that email challenge the issuing of the management advice. But she did state “As it being a staff car park, I would suggest for the safety of the children and adults, it might be advisable to have parents and children waiting on the path (a safer alternative) in a line (as they do when picking children). This will ensure that cars driving in and out of the staff car park are at ease.” [770] The Claimant’s evidence was that she should not be penalised for a rule that had not been communicated effectively and that she asked her colleague Ms Lambert who suggested that she send an email with alternative solutions. [770] We find that the Claimant’s email was an indication that she did not accept that she had done anything wrong even though her initial reaction did not challenge the issuing of management advice. It was clear that what was alleged against the Claimant’s driving was plainly something that a headteacher should issue management advice for. Any driver should know that they should not move their car when there was small children around. The fact that the Claimant had done this and did not recognise that she should not have been moving her car at all when there were small children around was the justification for the issuing of management advice.

[89]By email dated 16 November 2022, Mrs Bal-Richards invited the Claimant to attend an informal meeting on 18 November 2022 to address any concerns the Claimant had with the working environment following the outcome of the Claimant’s grievance appeal. Mrs Bal-Richards said in that email that she wanted to meet informally so “we are able to discuss and address any concerns that you have identified regarding the working environment. This would be a practical and helpful step towards creating a positive working relationship”. [773] The Claimant responded by email later that day, saying that she was not happy with the grievance appeal outcome, and she had contacted ACAS for support and to take it further. [774] We find that the Claimant’s response indicates that the Claimant had no interest in trying to reconcile the relationship between herself and Mrs Bal-Richards. She considered that the outcome of the grievance appeal was not what she wanted, and she was not prepared accept it. The Claimant accepted in evidence she did not know whether ACAS contacted the Respondent at all.

[90]On 18 November 2022, the Claimant did attend the meeting with Mrs BalRichards. However, Mrs Bal-Richards wrote a letter to the governing body on 18 November 2022 where she sets out the history to her belief that the working relationship between herself and the Claimant had broken down as the Claimant was unwilling to take instruction and responsibility for her own action [776-780]. The Claimant’s evidence was that Mrs Bal-Richards’ letter had many untruths in it. We find that the letter was a fair assessment of the relationship between Mrs Bal-Richards and the Claimant and the history to the breakdown.

[91]The ﬁrst full governing body meeting was scheduled for 22 November 2022 and so the concerns raised in Mrs Bal-Richards’ letter were discussed with the governing body after they received the letter on 21 November 2022. On 22 November 2022, the decision was taken by the Respondent to proceed with the SOSR procedure and invite the Claimant to a hearing [1217-1218]. Disciplinary

[92]By letter dated 8 December 2022 [1269-1271] Mr White invited the Claimant to attend a consideration of dismissal hearing for 15 December 2022 “SOSR hearing”, thereby resuming the SOSR process begun in July 2022. The letter included the allegations against the Claimant “1. whether the working relationship between you and Mrs Bal-Richards may have irreparably broken down. 2. Whether skilled and experienced staff may leave the school’s employment should you remain in post. 3. Whether the difficulties in the working relationship between you and Mrs Bal-Richards may have had a negative impact on colleagues and the wider school community.”

[93]The letter contained a link to all the relevant documentation listed in the letter [1270] and the Claimant acknowledged at the start of the hearing that she had received the document pack [784]. The purpose of the hearing was to consider whether the Claimant’s working relationship with Mrs BalRichards had irretrievably broken down and if the difficulties of that relationship had a negative effect on the school and whether colleagues may leave the school if the Claimant remained in post. The letter gave the Claimant the right to be accompanied by her union representative or a work colleague and warned if any of the allegations were found and no alternative solution could be found a possible outcome was termination of employment. The letter was signed by both Mr White and Ms Cook, although Mr White said that he drafted the letter. Mr White made it clear in his evidence that by inviting the Claimant to attend a SOSR hearing he was not making a decision about the Claimant’s employment.

[94]The Claimant attended the SOSR hearing on 15 December 2022. At the hearing the Claimant said that she had been subject to bullying and harassment since 2013. She said that if Mrs Bal-Richards had adhered to the recommendations made by the panel of governors in 2020, the relationship would have improved. The Claimant stated that the governors had agreed in respect of the Claimant’s grievance appeal that she had been treated differently to other members of staff. The fact that she received five disciplinary allegations meant that Mrs Bal-Richards was not adhering to the governors’ recommendations. The Claimant stated in the meeting that the treatment she received was more severe that others. [786] She said that the recommendations that the mediator made were not followed [787]. The Claimant accepted that a parent complained about her but said that parents complain all the time and only she got disciplinary action for a parental complaint. The Claimant commented that the relationship had broken down but only because things put in place to fix the relationship had not been adhered to [787]. In respect of the incident where Mrs Bal-Richards said that she drove dangerously in the staff car park, the Claimant said that “she received management advice for something that isn't even a rule and added that she didn't even break a rule. FR questioned why she had to receive management advice, why she couldn't just be issued with a verbal reminder” [787]

[95]In the meeting on 15 December 2022, the Claimant “referred to her current job share partner, RP and explained that when she was allowed to WhatsApp staff, RP sent her lots of messages about how much she loves working with FR but explained that RP told her that she doesn't want to work with her anymore because she's been through 3 investigations since working with her and she feels like she is in the middle of everything” [788] when speaking about the allegation that staff may leave the school because of her. But on the other hand, the Claimant “commented that she doesn't think the situation has had a negative impact on staff”, when referring to allegation three [789] Dismissal

[96]By letter dated 21 December 2022 the Claimant was dismissed [810-812]. The reasons were set out in the letter and allegations two & three were not upheld. But allegation one was upheld because it was the panel that heard the SOSR hearing (‘panel’) belief that the situation reflected a continuous period of incidents that had gone wrong, and that Mrs Bal-Richards had, quite rightly, brought these to the Claimant’s attention. The panel considered that the relationship between the Claimant and Mrs BalRichards was at that point unmanageable. The SOSR panel looked at whether the relationship could be repaired, but decided that it could not because the Claimant failed to accept any responsibility of the part she played in contributing to the situation and had not made attempts to improve the working relationship.[811] The alternatives that the panel looked at were whether the Claimant could be line managed by someone else, but this was not a practical option because of the reporting lines and the size of the school. Further mediation was looked at, but it had not worked 2 years ago when it was tried. Mr Furness was a plain and truthful witness. He explained in his evidence which we accepted, that the panel concluded that the Claimant did not demonstrate that she was wiling to make changes herself. She was not prepared to meet the Headteacher half way, she was only prepared if the Headteacher acted fairly as she perceived it and did things differently. The Claimant failed to put forward what she needed to do to repair the relationship when she was asked by a panel member, the Claimant did nothing to indicate that she was prepared to draw a line and move on from the past. Mr Furness explained that the panel were not there to reopen or have investigations about the past, but they did look at what happened historically and had the panel come across evidence that blatantly revealed that there has been a breach of equal opportunities they would have investigated and reopened previous investigations. The fact that the Claimant had raised a complaint of discrimination on the grounds of her religion was only relevant to the history of the relationship. The panel did not see anything in the evidence provided that alerted them to any blatant equal opportunities’ violations. The panel was not looking at the behaviour of the headteacher or right or wrong of the Claimant but the relationship between the Claimant and the headteacher. Both Mr Furness and Ms Cook confirmed that in their evidence and the fact that the issue was about the future and whether moving forward the relationship could be repaired. The decision to dismiss the Claimant was not predetermined. Ms Cook as a member of the panel also confirmed that the Claimant’s raising of allegations of religious discrimination did not affect the panel’s decision.

[97]The Claimant appealed against the dismissal decision by letter dated 6 January 2023. The Claimant’s grounds for appeal were that she had shown on multiple occasions that she was willing to work on the relationship between herself and Ms Bal-Richards, she believed that the breakdown of the relationship could be resolved if Mrs Bal-Richards made an effort, she had not failed to make an effort, her dismissal would have a negative effect on the reputation of the School, the recommendation of the mediator that more mediation sessions would improve the relationship was not implemented, the Claimant was not given any warnings, no support/mediation was put in prior to dismissal, Claire Jones could lead the performance management review for the Claimant, why was it that the Claimant is being dismissed when it was a two way relationship and the dismissal was an act of revenge for having raised a discrimination claim. [816] We find that there was no reference to further mediation sessions in the mediation held in December 2020. There was no such recommendation.

[98]By letter dated 16 February 2023. The Claimant was invited to attend the dismissal appeal hearing [828-8209] The appeal panel heard the Claimant’s appeal against dismissal on 16 March 2023 [834- 845]. Mr John deBraux was the chair of the appeal panel and asked the Claimant at the appeal hearing whether she could see herself working at the School in any capacity with Mrs Bal-Richards continuing as headteacher, the Claimant answered unfortunately not [842].

[99]By letter dated 21 March 2023 [846-850] the appeal panel upheld the dismissal decision because the panel had considered at length whether the relationship between the Claimant and Mrs Bal-Richards had broken down and whether the Claimant could be managed by someone else. They considered whether the recommendations by the mediator had been carried out and considered that mediation had not worked, and that the Claimant had been given warnings about the potential outcome in the invitation letter and the appeal panel considered that it was not appropriate to give incremental warnings as this was not a conduct capability issue. Outcome appeal letter confirmed that the appeal panel reasoned that the relationship between the Claimant and Mrs Bal-Richards was not a relationship of equals but a relationship between a senior manager and their direct report so the consideration to the organisation was different in respect of both. The decision to dismiss the Claimant was not an act of revenge due to the Claimant raising a discrimination claim with ACAS on 5 November 2022 as the governing body had already started the SOSR process before the Claimant approached ACAS. The panel considered all the documentation that set out the background to the breakdown of the relationship, so it was not correct to say that there was no investigation into what caused the breakdown of the relationship. The appeal panel reviewed the panel’s decision to dismiss and recognised it was the last resort of the panel as all other avenues had been exhausted or were unworkable. The appeal panel recognised that the Claimant’s 17 years service should have been recognised in the dismissal letter and stated that the situation was regrettable and unblameworthy. We heard evidence from John DeBraux as the chair of the appeal panel confirming the reasoning of the appeal panel contained in the appeal outcome letter dated 21 March 2023. Mr DeBraux gave evidence that the Claimant stated in the appeal that she could not work with Mrs Bal-Richards. Mr DeBraux confirmed that the appeal panel was not looking at discipline, but relationship. Despite finding that the dismissal letter had not acknowledged the Claimant’s 17 years of loyal service, Mr DeBraux’s evidence was that the decision to dismiss was sound. The Claimant was also given an opportunity at the appeal to explain her discrimination claim. There was a Muslim member on the panel to ensure a balanced appeal panel. We found Mr DeBraux’s evidence was consistent with the documentation and we accept his evidence. Relevant Law Unfair dismissal

Relevant Law

[100]The test for unfair dismissal is set out in section 98 of the Employment Rights Act 1996 (‘ERA’). Under section 98(1), it is for the employer to show the reason (or, if more than one, the principal reason) for the dismissal, and that it is either a reason falling within subsection (2), e.g. conduct, or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.

[101]The reason for dismissal is ‘a set of facts known to the employer, or it may be beliefs held by him, which cause him to dismiss the employee’. (Abernethy v Mott Hay and Anderson

[1974] ICR 323

, CA.)

[102]Under s98(4) ERA, the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) depends 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.

[103]There is always the possibility of an overlap between conduct and relationship breakdown. There may be good reasons for an employer labelling the dismissal as SOSR rather than conduct and, so long as a fair procedure is followed, the resulting dismissal may be fair even if the conduct label would have been equally appropriate.

[104]In Perkin v St George’s Healthcare NHS Trust

[2005] IRLR 934

,the Court of Appeal confirmed that the breakdown of relationship between the claimant in that case with other members of the senior executive team was a case falling within SOSR rather than conduct.

[105]Ezsias v North Glamorgan NHS Trust [2011]

UKEAT/0399/09/CEA

, is a case that deals specifically with the line between dismissal for misconduct and dismissal for the breakdown in the relationship between the claimant and his colleagues. In that case, the claimant had not been prepared to resolve interpersonal difficulties, he believed that the problem was about wider issues including concerns about senior managers. Senior staff raised a grievance and there was an investigation into the breakdown of relationships and a report that suggested that total retrieval of good working relationships was extremely unlikely. In Mr Justice Keith’s decision, the Tribunal’s finding was sound that the Claimant was dismissed because of his behaviour which was the main reason for the breakdown meant that the fact of the breakdown was the reason for dismissal and that did amount to SOSR.

[106]Tribunals must consider the reasonableness of the dismissal in accordance with s98(4) ERA. Tribunals must decide whether it was reasonable for the respondent to dismiss the claimant for that reason.

[107]The question is whether dismissal was within the band of reasonable responses open to a reasonable employer. It is not for a tribunal to substitute its own decision.

[108]The range of reasonable responses test (or, to put it another way, the need to apply the objective standards of the reasonable employer) applies as much to the question of whether an investigation into suspected misconduct was reasonable in all the circumstances as it does to other procedural and substantive aspects of the decision to dismiss a person from his employment for a conduct reason. The objective standards of the reasonable employer must be applied to all aspects of the question whether an employee was fairly and reasonably dismissed. (Sainsbury’s Supermarkets Ltd v Hitt

[2003] IRLR 23

, CA)

[109]Included in applying the reasonable responses test, the tribunals must also take into account the ACAS Code on Disciplinary and Grievance Procedures. By virtue of section 207 of the Trade Union and Labour Relations (Consolidation) Act 1992, the Code is admissible in evidence and if any provision of the Code appears to the tribunal to be relevant to any question arising in the proceedings, it shall be taken into account in determining that question.

[110]Failure by any person to follow a provision of the Code does not however in itself render him liable to any proceedings. However, the Code is also relevant to compensation. Under section 207A, if the claim concerns a matter to which the Code applies and there is unreasonable failure by either the employer or the employee to comply with the Code, there can be an increase or reduction in compensation (respectively) according to what is just and equitable of up to 25%.

[111]Under s122(2) ERA, the tribunal shall reduce the basic award where it considers that any conduct of the claimant before dismissal was such that it would be just and equitable to do so. Under s123(6), where the tribunal finds the dismissal was to any extent caused or contributed to by any action of the claimant, it shall reduce the amount of the compensatory award by such proportion as it considers just and equitable. Where the dismissal is unfair on procedural grounds, the tribunal must also consider whether, by virtue of Polkey v AE Dayton Services

[1987] IRLR 503

HL, there should be any reduction in compensation to reflect the chance that the claimant would still have been dismissed had fair procedures been followed. Time limits

[112]Section 123 Equality Act 2010 (‘EqA’) contains the provision on time limits applicable to discrimination claims, it 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 [……] (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; (b ) failure to do something is to be treated as occurring when the person in question decided on it. (4) 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, or (b ) if P does no inconsistent act, on the expiry of the period in which P might reasonably have been expected to do it.”

[113]Section 140B EqA states: “(1) This section applies where a time limit is set by section 123(1)(a) or 129(3) or (4). …. (2) In this section—(a) Day A is the day on which the complainant or applicant concerned complies with the requirement in subsection (1) of section 18A of the Employment Tribunals Act 1996 (requirement to contact ACAS before instituting proceedings) in relation to the matter in respect of which the proceedings are brought, and

(b) Day B is the day on which the complainant or applicant concerned receives or, if earlier, is treated as receiving (by virtue of regulations made under subsection (11) of that section) the certificate issued under subsection (4) of that section (3) In working out when the time limit set by section 123(1)(a) or 129(3) or (4) expires the period beginning with the day after Day A and ending with Day B is not to be counted. (4) If the time limit set by section 123(1)(a) or 129(3) or (4) would (if not extended by this subsection) expire during the period beginning with Day A and ending one month after Day B, the time limit expires instead at the end of that period. (5) The power conferred on the employment tribunal by subsection (1)(b) of section 123 to extend the time limit set by subsection (1)(a) of that section is exercisable in relation to that time limit as extended by this section.]”

[114]When exercising their discretion to allow out-of-time claims to proceed, Tribunals may also have regard to the checklist contained in Section 33 of the Limitation Act 1980 (as adapted by the Employment Appeal Tribunal (‘EAT’) in British Coal Corporation v Keeble and ors

[1997] IRLR 336

. Continuing Acts

[115]Barclays Bank plc v Kapur and ors

1991 ICR 208

, HL establishes where an employer operates a discriminatory regime, rule, practice or principle, then such a practice will amount to an act extending over a period. Where, however, there is no such regime, rule, practice or principle in operation, an act that affects an employee will not be treated as continuing, even though that act has continuing consequences which extend over a period of time.

[116]In Commissioner of Police of the Metropolis v Hendricks

[2002] EWCA Civ 1686

[2003] ICR 530

Mummery LJ held “the appeal tribunal allowed itself to be side-tracked by focusing on whether a “policy” could be discerned. Instead, the focus should be on the substance of the complaint that the commissioner was responsible for an ongoing situation or a continuing state of affairs […..] The question is whether that is “an act extending over a period” as distinct from a succession of unconnected or isolated specific acts, for which time would begin to run from the date when each specific act was committed.” (see paragraph 52, Mummery LJ)

[117]Aziz v FDA

[2010] EWCA Civ 304

, CA: In deciding whether separate incidents constitute part of a continuous act, “one has regard to whether the same individuals or different individuals were involved. This a relevant factor but not conclusive” [see paragraph 43, per Jackson LJ]

[118]The EAT in South Western Ambulance Service NHS Foundation Trust v King IRLR 168 EAT, establishes that where a Claimant wishes to assert that there is a continuing act or an act extending over a period of time, there must be findings made that there have been discriminatory acts committed by the Respondent in order to form part of an act to extend over a period of time or a continuing state of affairs. Religion

[119]Section 10 of the Equality Act 2010 is in the terms set out below. “(1) Religion means any religion and a reference to religion includes a reference to a lack of religion. (2) Belief means any religious or philosophical belief and a reference to belief includes a reference to a lack of belief.” Harassment

[120]Section 26, EQA 2010 sets out the legislative framework for harassment: “(1) A person(a) (A) harasses another

(b) (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. (5) The relevant protected characteristics are— belief;”

[121]In Richmond Pharmacology v Dhaliwal

[2009] ICR 724

the EAT stressed that the Tribunal should identify the three elements that must be satisfied to find an employer liable for harassment:(a) Did the employer engage in unwanted conduct,

(b) Did the conduct in question have the purpose or effect of violating the employee’s dignity or creating an adverse environment for him/her,

[122]In a case of harassment, a decision of fact must be sensitive to all the circumstances. Context is all-important. The fact the conduct is not directed at the Claimant herself is a relevant consideration, although this does not necessarily prevent conduct amounting to harassment and will not do so in many cases.

[123]Mrs Justice Slade’s comments on how a Tribunal should approach the words “related to the protected characteristic” are helpful in the EAT decision of Bakkali v Greater Manchester (South) t/a Stage Coach Manchester

[2018] IRLR 906

[2018] ICR 1481

(EAT).The EAT comment, whilst it is difficult to think of circumstances in which unwanted conduct on grounds of or because of a relevant protected characteristic would not be related to that protected characteristic of a claimant – “related to” such a characteristic includes a wider category of conduct and as such requires a broader enquiry when making a decision. (See paragraph 31 (Slade J presiding)

[124]Tribunals must not devalue the significance of the meaning of the words used in the statute (i.e., intimidating, hostile, degrading etc.). They are an important control to prevent trivial acts causing minor upset being caught in the concept of harassment. Being upset is far from attracting the epithets required to constitute harassment. It is not enough for an individual to feel uncomfortable to be said to have had their dignity violated or the necessary environment created. (Grant v Land Registry

[2011] IRLR 748

[125]Considering whether there has been harassment includes both a subjective and objective element. Underhill J in Pemberton v Inwood

[2018] EWCA Civ 564

summarised the position as follows: ''In order to decide whether any conduct falling within sub-paragraph (1)(a) of section 26 EqA has either of the proscribed effects under sub-paragraph (1)(b), a tribunal must consider both (by reason of sub-section 4(a)) whether the putative victim perceives themselves to have suffered the effect in question (the subjective question) and (by reason of sub-section 4(c)) whether it was reasonable for the conduct to be regarded as having that effect (the objective question). It must also take into account all the other circumstances (subsection 4(b))”

[126]Section 212(1) EqA says “detriment does not, subject to subsection (5) include conduct which amounts to harassment.”

[127]Section 212(5) EqA says “Where this Act disapplies a prohibition on harassment in relation to a specified protected characteristic, the disapplication does not prevent conduct relating to that characteristic from amounting to a detriment for the purposes of discrimination within section 13 because of that characteristic.”

[128]Section 212 EqA means that an action that is complained of must be either direct discrimination or harassment, but it cannot be both. Equally such an action cannot be both harassment and victimisation. It must be one or the other. This is because the definition of detriment excludes conduct which amounts to harassment. Burden of Proof provisions

[129]Section 136 of the Equality Act 2010 states: “(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 sub-Section (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. (5) This Section does not apply to proceedings for an offence under this Act. (6) A reference to the court includes a reference to – (a) An Employment Tribunal.”

[130]Pre- Equality Act 2010 House of Lords decision of Igen v Wong

[2005] IRLR 258

set out a two stage test tribunals must apply when deciding discrimination claims. This two stage approach was discussed in the Court of Appeal decision of Madarassy v Normura International plc

[2007] EWCA 33

, with guidance being provided by Mummery LJ. Since the Equality Act 2010 (although the burden of proof provisions differs in wording to the test set out in Igen), the Appellant Courts and EAT have repeatedly approved the application of the guidance set out by Mummery LJ in Madarassy. In summary the first stage is where the burden of proof first lies with the Claimant who must prove on a balance of probabilities facts from which a Tribunal could conclude, in the absence of any other (non discriminatory) explanation that the Respondent had discriminated against him. If the Claimant meets the burden and establishes a prima facie case (which will require the Tribunal to hear evidence from the Claimant and the Respondent, to see what proper inferences may be drawn), then the burden shifts and the Respondent must prove that it did not commit the act disproving the allegations. This will require consideration of the subjective reasons that caused the employer to act as he did. The Respondent will have to show a non-discriminatory reason for the difference in treatment.

[131]Tribunals must be careful, and the burden of proof provisions should not be applied in an overly mechanistic manner: see Khan v The Home Office

[2008] EWCA Civ 578

(per Maurice Kay LJ at paragraph 12).

[132]The approach laid down by section136 EqA requires careful attention where there is room for doubt as to the facts necessary to establish discrimination, but where the Tribunal is able to make positive findings on the evidence one way or another, the provisions of section136 does not come into the equation: see Martin v Devonshires Solicitors

[2011] ICR 352

(per Underhill J at paragraph 39), approved by the Supreme Court in Hewage v Grampian Health Board

[2012] ICR 1054

(per Lord Hope at paragraph 32).

[133]It is, however, not necessary in every case for the Tribunal to specifically identify a two-stage process. There is nothing wrong in principle in the Tribunal focusing on the issue of the reason why. As the Employment Appeal Tribunal (“EAT”) pointed out in Laing v Manchester City Council

[2006] IRLR 748

“If the tribunal acts on the principle that the burden of proof may have shifted and has considered the explanation put forward by the employer, then there is no prejudice to the employee whatsoever”. Direct discrimination

[134]Section 13 EQA 2010 sets out the statutory position in respect of claims for direct discrimination because of philosophical belief. “(1) 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. Section 39 (2) applies to employers and states: “An employer (A) must not discriminate against and employee of (A)’s (B)…

(d) by subjecting B to any other detriment.”

[135]When determining questions of direct discrimination there are, in essence, three questions that a Tribunal must consider:(a) Was there less favourable treatment?

(b) The comparator question; and

[136]The test for unfavourable treatment was formulated in the case of Shamoon v Chief Constable of the Royal Ulster Constabulary

[2003] UKHL 11

in that case the House of Lords as it was then, said that unfavourable treatment arises where a reasonable worker would or might take the view that they had, as a result of the treatment complained of, been disadvantaged in the circumstances in which they had to work.

[137]Lord Hope’s judgment in Shamoon clarifies that a sense of grievance which is not justified will not be sufficient to constitute a detriment.

[138]Section 23 EQA 2010 deals with comparators and states that: “There must be no material difference between the circumstances relating to each case.”

[139]Shamoon held that the relevant circumstances must not be materially different between the Claimant and the comparators, so the comparator must be in the same position as the Claimant save in relation to the protected characteristic.

[140]The protected characteristic in question need not have been the sole reason for that conduct (Owen and Briggs v James

[1982] IRLR 502

,). The question is whether it was an 'effective cause'. Victimisation

[141]Section 27 EqA sets out as follows: “(1) A person(a) (A) victimises another person

(b) (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;

(d) making an allegation (whether or not express) that A or another person has contravened this Act. (3) Giving false evidence or information, or making a false allegation, is not a protected act if the evidence or information is given all the allegation is made, in bad faith. …”

[142]Section 39 (4) applies to employers and states: “An employer(a) (A) must not victimise against an employee of (A)’s

(b) (B) …. (d) by subjecting B to any other detriment.”

[143]The issue of causation is fundamental to proving victimisation. In the seminal case of Nagarajan v London Regional Transport

[1999] ICR 877

, HL: The House of Lords ruled that victimisation will be made out, even if the discriminator did not consciously realise that he or she was prejudiced against the complainant because the latter had done a protected act.

[144]Lord Nicholls put it like this in Nagarajan “Save in obvious cases, answering the crucial question will call for some consideration of the mental processes of the alleged discriminator. Treatment, favourable or unfavourable, is a consequence which follows from a decision. Direct evidence of a decision to discriminate on [protected] grounds will seldom be forthcoming. Usually the grounds of the decision will have to be deduced, or inferred, from the surrounding circumstances.”

[145]The Equality and Human Rights Commission Code of Practice on Employment 2011 (the “Code”) explains that at paragraph 9.11- 9.12. “9.11 Victimisation does not require a comparator. The worker need only show that they have experienced a detriment because they have done a protected act or because the employer believes (rightly or wrongly) that they have done or intend to do a protected act. 9.12 There is no time limit within which victimisation must occur after a person has done a protected act. However, a complainant will need to show a link between the detriment and the protected act.”

[146]Ministry of Defence v Jeremiah

[1979] IRLR 436

[1980] ICR 13

, (CA): established that a detriment exists 'if a reasonable worker would take the view that the treatment was to his detriment'.

[147]Notwithstanding, Lord Neuberger in the House of Lords in Derbyshire and ors v St Helens Metropolitan Borough Council and ors

[2007] ICR 841

noted “An alleged victim cannot establish “detriment” merely by showing that she had suffered mental distress: before she could succeed, it would have to be objectively reasonable in all the circumstances.” (see paragraph 68, page 863).

[148]Deer v University of Oxford

[2015] ICR 1213

concerned a victimisation claim on the grounds of having previously brought proceedings the Claimant was refused a reference. Elias LJ said at paragraph 26 “In fact it seems to meas it did to Underhill LJ as he said when granting permission to appeal- that, although the concepts of less favourable treatment and detriment are distinct, there will be very few, if any, cases where less favourable treatment will be meted out and yet it will not result in a detriment. This is because being subject to an act of discrimination which causes, or is reasonably likely to cause, distress or upset will reasonably be perceived as a detriment by the person subject to the discrimination even if there are no other adverse consequences”. The Court of Appeal concluded that the conduct of internal procedures can amount to a detriment even if proper conduct would not have altered the outcome. Analysis Unfair dismissal Issue 2.3 Was the dismissal for a potentially fair reason?

[149]It is not disputed that the Claimant was dismissed. The Respondent says that the reason for dismissal was the breakdown in relations between the Claimant and the headteacher Mrs Bal-Richards and this amounts to some other substantial reason which is a fair reason for dismissal. We consider that the reason put forward by the Respondent was the genuine reason for dismissal. The Claimant herself accepted at the SOSR hearing on 15 December 2022 that there was a breakdown in the relationship [787] and also at the appeal that she could not work with Mrs Bal-Richards.

[150]The Claimant’s submissions are that the Respondent could not have dismissed her fairly without investigating whether the reason why there was a breakdown in the relationship between the Claimant and Ms Bal-Richards. The Claimant said that reason was because Ms Bal-Richards was discriminating against her because she was a Muslim and she had made efforts to be conciliatory to Ms Bal-Richards, but it was Ms Bal-Richards who had not done anything to resolve issues and make up with the Claimant. We do not accept the Claimant’s submissions and we deal with the alleged discriminatory dismissal below. Issue 2.4 Did the Respondent act reasonably in all the circumstances in treating it as a sufficient reason to dismiss the Claimant?

[151]We accepted the panel’s reasoning for why they considered that there was a breakdown of the relationship. We consider that the panel genuinely looked at alternatives to dismissal. The Claimant only put forward mediation as an alternative, and we find the panel’s reasoning that mediation could not work was within the range of reasonable responses. The Claimant did not at that point accept that she needed to adjust her behaviour and mediation would have required her to do that in some form or another. The panel also looked at whether the Claimant could be line managed by someone else. It was within the range of reasonable responses for them to conclude that a change of management would not resolve the issue. The School was small, and the Claimant would not have been able to avoid the Headteacher and how Mrs Bal-Richards managed the School which affected the Claimant.

[152]We also find that the appeal panel’s reasoning for why they did not accept the Claimant’s grounds of appeal was also within the range of reasonable responses.

[153]The Claimant argued in her submissions that the dismissal was unfair because the full context of the breakdown of the relationship was not considered, the panel and appeal panel did not adequately look into the historical issues and consider alternative resolutions. All the points that the Claimant raised in her SOSR hearing were about the historical complaints all of which had been raised in her grievance in 2020 and or 2022. These were both investigated, and the Claimant’s grievances were not upheld. In those circumstances, it would not have been within the range of reasonable responses for the Respondent to have ignored the findings of the grievances. We accepted that the Respondent took into consideration the historical issues and we find that where the matters had already been investigated, it was with range of reasonable responses for the Respondent to have left it at that. We have found that the panel did look at alternative solutions. The Claimant did not put forward any other solution other than mediation, which the panel and appeal panel considered was not workable.

[154]The Claimant also added that she was not able to get answers on what exactly caused the relationship to breakdown. However, it seems to us that this arose from the fact that the Claimant did not accept when she was told she had done something wrong and the manoeuvre around the carpark when children were present was an example of this. The Claimant did not understand that it was common sense and responsible driving that you did not move your car when little infant children were running across the car park following afterschool club. We do not accept that the Claimant did not know what caused the relationship to breakdown. It was clearly set out in Mrs Bal-Richards’ letter dated 18 November 2022 that the Claimant was unwilling to take instruction and responsibility for her own actions. The Claimant gave evidence and argued in her submissions, that she did not have a grievance meeting when she raised a grievance. However, the Claimant accepted in evidence that she was given a meeting with Mr Southwell.

[155]The Claimant also stated the dismissal was motivated by the raising of March 2022 grievance. However, the Claimant had said that the dismissal was raised because of the complaint to ACAS not because of the March 2022 grievance or in addition to the complaint to ACAS, and so the Claimant is shifting her position. Neither does the Claimant mention it in her claim form [88] but again refers to the raising of discrimination in the ACAS early conciliation as the act of victimisation. It was always open to the Claimant to say that it was the March 2022 grievance but she did not say that and so we do not accept that the Claimant believes that it was the March 2022 grievance that was the reason why she was dismissed. In any event we accept Mr DeBraux and Ms Cook’s evidence that the Claimant’s raising of a complaint of discrimination did not impact on the SOSR hearing panel or appeal panel’s decision.

[156]The Claimant submitted that it was not reasonable for her to forget and move on from discrimination, threatening behaviour and victimisation while allowing the perpetrator’s behaviour to continue unchecked. However, the Claimant had raised grievances in 2020 and 2022 and appealed both grievances and at some point, the Claimant needed to move on. The panel felt that that Claimant had done nothing to indicate that she could move on. We consider that this conclusion was within the range of reasonable responses.

[157]The Claimant also submitted that the dismissal letter failed to acknowledge 17 years of loyal service. The appeal panel acknowledged this, but we conclude that whether the SOSR hearing panel acknowledged this or not would not have made any difference. The issue for the Respondent was not the Claimant’s conduct but the breakdown of the relationship and whether it could be rectified, the Claimant’s loyal service was not relevant to this point and could not have made a difference to the decision to dismiss.

[158]In the Claimant’s submissions, she raised for the first time that the governors should have worked to retain Muslim staff who bring diversity to the teaching team. The Claimant did not provide us with any evidence that the Respondent did not work to retain Muslim staff. There was other members of the teaching team like teaching assistants who were retained for example Ms Ashfaq. Notwithstanding, the fact that the School arranged the mediation in December 2020 and the length of time that expired before the Claimant was put through the SOSR process in September 2022, these were things that indicated that the Respondent did try and retain the Claimant, who happened to be a Muslim member of staff.

[159]We therefore conclude that the decision to dismiss the Claimant was within the range of reasonable responses and the dismissal was fair. Burden of proof

[160]The Claimant is Muslim, and she wears a hijab. However, we did not make any findings from which we could infer that the Claimant’s religion was the reason why the Claimant was treated less favourably in respect of all the issues concerned with direct discrimination on the grounds of religion. We found the Claimant worked with Ms Bal-Richards from 2012-214 without any complaint about any acts of alleged discrimination on the grounds she was a Muslim, or any harassment related to her Muslim religion or any complaints at all. The Claimant was not able to demonstrate to us a prima facie case in respect of any of her allegations of direct discrimination or harassment that enabled the burden to be shifted to the Respondent to provide a non discriminatory explanation for theirs and Mrs Bal-Richards and Mr Dourado’s conduct.

[161]We note that the Claimant did cross examine Mrs Bal-Richards about allowing her to not have lunch with the children when she was fasting for Ramadan in April 2020, Mrs Bal-Richards’ denied it saying that the School was in lockdown in April 2020, however, the Claimant did not provide any evidence about this issue and so we did not make a finding about. In those circumstances, we find that that it was not part of the Claimant’s claim and we do not deal with it. Direct discrimination because of religion or belief (Equality Act 2010 section 13) Issue 5.2.1 Refusing to give the Claimant a pay rise in 2014?

[162]We found that in none of the Claimant’s emails complaining of the pay rise did the Claimant mention that she believed she did not receive the raise because she was Muslim. We conclude that if the Claimant believed that she was being discriminated against on the grounds of her religion as a Muslim then she would have mentioned it at the time. The Claimant did not. We found that the Claimant did not receive a pay rise 2014, and we conclude that this is less favourable treatment, but we found this was because the Claimant’s work could not be determined without being assessed/ evidenced throughout the year and there was no automatic increase because the teacher had met their appraisal objectives. We therefore conclude the Claimant’s complaint is unfounded and is dismissed. Issue 5.2.2 In July 2015 the Claimant taught the same class with Emily Janes. The Claimant says her Performance Management review was marked more harshly than Mrs Janes even though they taught the same class and did the same work.

[163]We found that Ms Janes did not say that the reason for the Claimant being treated more harshly than her was because of the Claimant’s religion and we found that that there was no harsh performance management review in 2015. We therefore conclude that there was no less favourable treatment of the Claimant and the Claimant’s complaint is not well founded and is Issue 5.2.3 Putting the Claimant on an unjustified and unevidenced Performance Improvement Plan (“PIP”) in May 2018.

[164]We found that the Claimant was put on a PIP in May 2018 because the Claimant had failed to heed the concerns raised by Mr Dourado in 2016 and 2017 and was repeating behaviour that she had been warned about. We found that the PIP was therefore justified and evidenced. We therefore conclude that the Claimant was not subjected to less favourable treatment. We conclude that the complaint is not well founded and is dismissed. Issue 5.2.4 The Deputy Headteacher made a log of everything the Claimant did wrong / mistakes she made in May 2018.

[165]We found that Mr Dourado did make a log of the Claimant’s mistakes in May 2018, but we accepted Mr Dourado’s evidence that he also logged matters that were good about the Claimant. Mr Dourado also did this for all staff he line managed. We consider that this was less favourable treatment, but we consider that Mr Dourado did this for everyone he line managed and so would have done the log for any comparator. We consider that the Claimant’s religion had nothing to do with the log. The Claimant accepted that she had a good relationship with Mr Dourado and at no point did she give evidence that Mr Dourado made the log because she was Muslim. We did not accept that Mrs Bal-Richards instructed Mr Dourado to draw up a log of the Claimant. We therefore conclude that the complaint is not well Issue 5.2.5 In July 2019 the Headteacher told off the Claimant for starting emails with the word “Hi” whereas she did not do the same with respect to Jane Lambert, Andre Dourado.

[166]We found that the Mrs Bal-Richards advised the Claimant about starting her emails with Hi because the Claimant sent emails without any explanation in the email and just an attachment sometimes. We consider that for the Claimant, that this advice was less favourable treatment. However, we consider that Mrs Bal-Richards would have told any member of staff that to send emails without explanation was unprofessional because it is. It was not because of the Claimant’s religion. We conclude that the complaint is 5.2.6 In July 2019 the Claimant shared a class with Jo Lee and Sara O’Shea both of whom did not complete some assessments and did not attend the same staff meeting, however only the Claimant was told off by the Headteacher who criticised her for not improving standards and monitoring special needs children.

[167]We found that the Claimant was told off for not completing assessments in relation to improving standards Herts assessments and monitoring SEND assessments, but this was because it was her responsibility. Whilst it was less favourable treatment to be criticised for not completing the assessments, we consider that had Ms Lee or Ms O’Shea missed assessments they would have also been criticised. Although Ms O’Shea gave evidence, she did not address the issue at all. The Claimant had not established any prima facie facts from which we could infer discrimination. We conclude that the complaint is not well founded and is dismissed. Issue 5.2.7 At the same time in July 2019 the Claimant was put on a PIP and received threatening letters, whereas Jo Lee was not subjected to this treatment despite sharing a class with the Claimant.

[168]The Claimant was put on a PIP because it was her responsibility to carry out the assessments and she had not done it. The Claimant was already on an informal PIP and her job share was not. The fact that the Claimant was on an informal PIP was a material difference between her and Ms Lee. Ms Lee was not an appropriate comparator in the circumstances. We accepted the reason why the Claimant was put on a PIP in July 2019 because she had not completed the assessments and was not demonstrating the expected standards. We also found that the letters sent to the Claimant from Mrs Bal-Richards in July 2019 were not threatening in content. We conclude that the complaint is not well founded and is dismissed. 5.2.8 Putting the Claimant on unjustified PIPs in May 2018 and July 2019 and on two other unspecified dates.

[169]We found that the PIPs in May 2018, July 2019, September 2019 and March 2022 were justified. The reasons for the PIP in May 2018 resulted from the Claimant’s failure to heed Mr Dourado repeated concerns, the PIP in July 2019 was because the Claimant had not met the standards required not least because she had not completed assessments she was responsible for, the PIP in September was because the Claimant had not met with Mrs Bal-Richards in relation to the July 2019 PIP so it straddled 2 academic years and the PIP in March 2022 was because Mrs Bal-Richards had genuine concerns about the Claimant’s lack of acceptance of responsibility in respect of speaking to the parent immediately in respect of a safeguarding issue. The Claimant mentioned in evidence for the first time that the comparator for the March 2022 PIP was Ms Patterson. But we consider that there was a material difference between the Claimant and Ms Patterson that made her an inappropriate comparator, namely that she was an assistant headteacher and that she was not on a PIP already for other matters like the Claimant. We consider that the PIPs were less favourable treatment, however, we accept that each PIP was justified and there were no findings we made from which the Claimant established a prima facie case that the reason for the PIPs was because of her religion. We found that they were not. In the circumstances, we conclude that the complaint is not well Issue 5.2.9 In May 2020 the Claimant asked the Headteacher a question following which she shouted at the Claimant and told her to “shush.”

[170]We found that Mrs Bal-Richards did tell the Claimant to say shush and shouted, but only because the Claimant was being argumentative and ranting. We consider that it is less favourable treatment, however we consider that Mrs Bal-Richards would have told anyone who was being argumentative and ranting to shush. There were no findings we made from which the Claimant established a prima facie case that the reason Mrs BalRichards told her to shush was because of her religion. We conclude that the Claimant’s religion had nothing to do with why Mrs Bal-Richards told her to shush. We conclude that the complaint is not well founded and is Issue 5.2.10 The Claimant was told to rewrite a policy in June 2020 seven times whereas Jane Lambert and Bristi Spinage who were also writing reports did not have to do so.

[171]We accepted that Mrs Bal-Richards did tell the Claimant to write the ICT computing policy seven times. We consider that this is less favourable treatment. However, we do not accept that the reason why the Claimant was asked to write the report 7 times had anything to do with her religion. We accepted Mrs Bal-Richards’ evidence that Ms Lambert and Ms Spinage’s reports were of a high quality and so did not need so much work. The Claimant has failed to establish a prima facie case and shift the burden of proof. We conclude that the complaint is not well founded and is Issue 5.2.11 In June 2020 the Claimant was told to rewrite reports on pupils whereas Jane Lambert and Andre Dourado were not.

[172]We found that Mrs Bal-Richards criticised policies and reports based upon the content of the report not who wrote the report, and the Claimant was not the only person who reports were criticised, Mr Dourado, Ms Spinage and Ms Pengelly also had their reports/policy criticised although not necessarily on the same occasions as the Claimant. Mr Dourado is not an appropriate comparator in any event as he was the deputy head and was therefore of different seniority to the Claimant. There were no findings we made from which the Claimant established a prima facie case that the reason Mrs BalRichards asked the Claimant to rewrite her reports was because of her religion. We conclude that the complaint is not well founded and is Issue 5.2.12 The Claimant was put through a disciplinary process in July 2020 for using her mobile telephone at work, whereas Jane Lambert who did the same, was not.

[173]We found that Mrs Bal-Richards did not know about Ms Lambert using a mobile phone when the Claimant was put through the disciplinary process in July 2020. It was not reported to the senior leadership team in September 2020 and so that is why there was no sanction of Ms Lambert. Although being put through a disciplinary process was a less favourable treatment, we conclude that there were no findings on which we could infer that the reason for the Claimant’s less favourable treatment was because of her religion. We conclude that the complaint is not well founded and is Issue 5.2.13 The Claimant was subject to a disciplinary investigation in October 2020 after she forgot to sign out, whereas Andre Dourado and Jane Lambert who did the same, were not subject to this treatment.

[174]We accepted Mrs Bal-Richards and Mr Dourado’s evidence that the Claimant regularly did not sign in or out and that was the difference between the odd occasions when Mr Dourado and Ms Lambert did not sign in or out. Mrs Bal-Richards had warned the Claimant in previous occasions. In the end the Claimant only admitted to not signing in or out on two occasions, not that she was subject to the disciplinary investigation because she had only signed in or out twice. It was less favourable treatment to be subject to disciplinary proceedings, but we conclude that there were no findings on which we could infer that the reason for the Claimant’s less favourable treatment was because of her religion. We conclude that the complaint is Issue 5.2.14 The Headteacher telephoned the Claimant on two non-working

[175]We found that it was not fair for Mrs Bal-Richards to tell the Claimant off on 5 July 2021, but we do not conclude that the reason for the Claimant being told off was because she is Muslim. We considered that it was less favourable treatment, but we found the reason the Claimant was told off was because Mrs Bal-Richards received a complaint from Mr Dourado who was upset about his information being shared and that it was a staffing matter that was not to be shared outside the School. We conclude that the complaint is not well founded and is dismissed. Issue 5.2.15 Subjecting the Claimant to disciplinary proceedings in July 2020 and July 2021

[176]The Claimant was subject to disciplinaries in July 2020 and July 2021. We consider that this was less favourable treatment. However, the disciplinaries were both justified as there identified conduct issues on both occasions. The findings of the disciplinary outcome was that that Claimant had failed to follow School policy in relation to using the mobile phone in the classroom and not signing in or out. These were legitimate matters to investigate. Furthermore, we found that even though the disciplinary investigation in 2021 found that there was no case to answer, the matters of investigation were legitimate matters to investigate. There were no findings on which we could drawn an inference that the Claimant was treated less favourably because of her religion. We therefore conclude that the complaint is not well Issue 5.2.16 In January 2022 the Claimant shared the same school class as Roz Pengelly but only the Claimant was subject to extra performance targets.

[177]We found that the Claimant was not subject to extra performance targets because there was no evidence about the number of performance targets the Claimant was subjected to compared to Ms Pengelly. In those circumstances we conclude that the Claimant was not subject to extra performance targets. We therefore conclude that the complaint is not well Issue 5.2.17 In March 2022 the Headteacher directed Saira Imad to log conversations of the Claimant’s discussions in the staffroom, particularly where she spoke of being a Muslim.

[178]We found that Mrs Bal-Richards did not direct Saira Imad to log conversations of the Claimant’s discussions in the staffroom, particularly where she spoke of being a Muslim. Mrs Bal-Richards just asked Ms Imad for her version of events in relation to a matter that had been brought to Mrs Bal-Richards’ attention. In those circumstances, we therefore conclude that the complaint is not well founded and is dismissed. Issue 5.2.18 In March 2022 the Claimant shared a school class with Claire Jones but only the Claimant was subjected to a PIP.

[179]We found that it was not Claire Jones that the Claimant was referring to but Ms Pengelly who was the Claimant’s job share at that time. Although it was less favourable treatment for the Claimant to be subjected to a PIP, the reason why the PIP instigated was because of the Claimant’s attitude and the undermining of Mrs Bal-Richards’ authority as Headteacher. The Claimant displayed a lack of acceptance that it was her duty to safeguard the child by raising concerns following her discussion with the parent immediately with either her or her line manager. We found that Ms Pengelly had not been accused of the matters that the Claimant had been accused off. Even if the Claimant was permitted to rely on Ms Patterson as a comparator, she was not an appropriate comparator, as she was senior management. There were no findings on which we could drawn an inferences that the Claimant was treated less favourably because of her religion. We therefore conclude that the complaint is not well founded and is dismissed. Issue 5.2.19 Issuing the Claimant with management advice in November 2022 when she drove her car in the school car park in front of parents at 4.15pm.

[180]We found that it was justifiable for the Claimant to be issued with management advice in respect of a parent complaint about the Claimant’s driving. The Claimant did not recognise the danger of her driving and that is why management advice was necessary. There were no findings on which we could drawn an inference that the Claimant was treated less favourably because of her religion. We therefore conclude that the complaint is not well Issue 5.2.20 The Governors determined that there had been a breakdown in the relationship between the Claimant and the Headteacher and decided to dismiss the Claimant.

[181]We found that the Claimant accepted herself that there was a breakdown in relationship between the Claimant and Ms Bal-Richards. We have found that the dismissal of the Claimant for this reason was fair. There were no findings on which we could drawn an inference that the Claimant was treated less favourably because of her religion. We therefore conclude that the complaint is not well founded and is dismissed. Issue 5.2.21 Sending the Claimant threatening letters with management advice or making reference to capability procedures from 2014 to 2022, including on the following dates: 16th October 2014, 18th November 2014, 4th June 2018, 26th June 2019, 27th June 2019, 27th June 2019 (second letter),27th September 2019, 29th June 2020, 3rd July 2020, 6th July 2020, 9th July 2020, 20th July 2021, 14th December 2021,19th January 2022, 19th January 2022 (second letter), 4th November 2022, 5th November 2022.

[182]We found that the Claimant was not sent any threatening letters. In those circumstances the Claimant’s complaint of direct religious discrimination is Harassment related to religion (Equality Act 2010 section 26) Issue 6.1.1 Sending the Claimant threatening letters with management advice or making reference to capability procedures from 2014 to 2022, including on the following dates: 16th October 2014, 18th November 2014, 4th June 2018, 26th June 2019, 27th June 2019, 27th June 2019 (second letter),27th September 2019, 29th June 2020, 3rd July 2020, 6th July 2020, 9th July 2020, 20th July 2021, 14th December 2021,19th January 2022, 19th January 2022 (second letter), 4th November 2022, 5th November 2022.

[183]We found that the Claimant was not sent any threatening letters. In those circumstances the Claimant’s complaint of harassment related to religious discrimination is not well founded and is dismissed. Issue 6.1.2 Subjecting the Claimant to disciplinary proceedings in July 2020 and July 2021.

[184]We consider that it was unwanted conduct for the Claimant to be subject to two disciplinaries in July 2020 and July 2021, however, it was not related to the Claimant’s religion. We do not consider that the purpose was to violate the Claimant’s dignity or to create an intimidating, hostile, degrading, humiliating or offensive environment. We conclude that the complaint is not well founded and is dismissed. Issue 6.1.3 The Headteacher telephoned the Claimant on two non-working

[185]We consider that that it was unwanted conduct for the Claimant to be told off on 5 July 2020 in relation to the Claimant telling her husband about Mr Dourado leaving the School allowing her son to over hear and tell his school mates. However, we do not consider that Mrs Bal-Richards telling the Claimant off was related to the Claimant’s religion. The reason why Mrs BalRichards told the Claimant off was because she believed that that the matter was a staff matter so confidential. We also do not consider that the purpose of the telling off was to violate the Claimant’s dignity or that it created an intimidating, hostile, degrading, humiliating or offensive environment. We conclude that the complaint is not well founded and is dismissed. Issue 6.1.4 Putting the Claimant on unjustified PIPs in May 2018 and July

[186]Whilst we consider that the Claimant being put on PIPs in May 2018, July 2019, September 2019 and March 2022 was unwanted conduct we did not find that any of the informal PIPs the Claimant complained about was unjustified. In those circumstances we do not conclude that the purpose or effect of the Claimant being on unjustified PIPs was to violate the Claimant’s dignity or to create an intimidating, hostile, degrading, humiliating or offensive environment. Neither do we conclude that it was for a reason related to the Claimant’s religion as a Muslim, there were no findings upon which we could make an inference of religion being related to the unwanted conduct. We conclude that the complaint is not well founded and is Victimisation (Equality Act 2010 section 27) Issue 7.1.1 Did the Claimant carry out a protected act by issuing a grievance in July 2020?

[187]We found that the Claimant did not make any reference to the Equality Act 2010 in her July 2020 grievance. There was nothing in the grievance that suggested that the Claimant was making a protected act. We therefore conclude that the Claimant’s grievance in July 2020 was not a protected act. Issue 7.1.2 Did the Claimant carry out a protected act by issuing a grievance complaining about bullying, harassment, and unfair treatment in March 2022?

[188]The Respondent accepted that the Claimant’s March 2022 grievance was a protected act. We conclude that it was a protected act as the Claimant did refer to being discriminated on the grounds of her being a Muslim. Issue 7.1.3 Did the Claimant carry out a protected act by issuing an appeal against the grievance outcome in October 2022?

[189]We agree with the Respondent that the appeal against the grievance outcome in October 2022 was a protected act because even though we found that there was no express link of the Muslim teacher’s treatment and the Claimant’s treatment we consider that the words of the statute under section 27(2) (f) “making an allegation (whether or not express) that A or another person has contravened this Act” allows the Employment Tribunal to interpret the allegation as referring to the Respondent contravening the Equality Act 2010 as the appeal document suggests in its content that the Respondent is subjecting the Claimant to extreme scrutiny because it does that to Muslim teachers. Issue 7.1.4 Did the Claimant carry out a protected act by engaging in ACAS Early conciliation in November 2022?

[190]Although the Respondent made a concession that the Claimant’s engagement with ACAS was a protected act, we were not provided with any evidence of what the Claimant said or wrote that could amount to a protected act with ACAS. The Claimant only stated in her evidence that she claimed discrimination. The Claimant did not know whether the Respondent was contacted by ACAS. The Respondent did not waive privilege in respect of documents that explained settlement. We conclude that there was no evidence before us of what the Claimant did or any other thing for the purposes of or in connection with the Equality Act 2010 or made an allegation (whether or not express) that the Respondent or another person has contravened the Equality Act 2010. We therefore do not consider that the Claimant carried out a protected act in respect of ACAS early conciliation. Issue 7.2.1 Increase the allegations against the Claimant from two to five in the July 2020 disciplinary investigation.

[191]We accepted that the allegations against the Claimant were increased from two to five in July 2020. The outcome of the allegations was not to pursue disciplinary action against the Claimant but to issue the Claimant with management advice in relation to the additional allegations. We consider that this is a detriment however, the reason for the increase in the allegations was because Mrs Bal-Richards had ongoing concerns and had been advised to pause these concerns until after the grievance had been resolved. When the allegations were increased that Claimant had not carried out a protected act that she relies upon. In the circumstances, we conclude that the protected acts carried out by the Claimant could not be and were not the effective cause of the increase in allegations by Respondent. We therefore conclude that the complaint is not well founded and is dismissed. Issue 7.2.2 Terminate the Claimant’s employment in December 2022.

[192]Whilst it is the case that the Claimant had carried out two protected acts, raising her grievance and making her appeal before she was dismissed on 21 December 2022, we consider that those protected acts were not the effective cause of the Claimant’s dismissal. The panel knew of the Claimant’s grievance and so did the appeal panel who also received the Claimant’s appeal. We considered the evidence of Mr Furness and Ms Cook who were both on the panel and Mr DeBraux who was chair of the appeal panel as to how they thought about the discrimination allegation that the Claimant raised in the grievance and grievance appeal in 2022 and found that neither the panel nor the appeal panel were influenced by the Claimant having raised a claim of religious discrimination in her grievance in March 2022 or in her grievance appeal. We conclude that the Claimant was not victimised, and her complaint of victimisation is not well founded and is Time limits

[193]Any acts of discrimination/ harassment that took place before 22 August 2022 are out of time. The Claimant has not succeeded on any complaints of either direct discrimination on the grounds of religion or harassment related to the Claimant’s religion. However, even if we are wrong on that we do not consider that the Claimant was able to convince the Employment Tribunal that any of the acts complained of were continuing acts. The Claimant argued that there was a continuing course of conduct in respect of acts of Ms Bal-Richards and those acting on her behalf. The Claimant gave no evidence on why she did not bring her claims in time. The acts complained of by the Claimant post August 2022 were not in any way linked to Mrs Bal-Richards. The only acts that took place after August 2022 were carried out by the governing body in the Claimant’s dismissal. There was no evidence that the governing body was acting on behalf of Mrs Bal-Richards and the Claimant did not posit this at any point. Neither would we have found it not just and equitable to extend time as the Claimant gave no evidence on why she did not bring her claims in time. Costs

[194]The Respondent made an oral application under rule 76 (1) (a) & (b) Employment Tribunal Rules of Procedure 2013, (‘ETR’)

[195]In summary the Respondent’s oral application was that whilst they accepted that the Employment Tribunal did not find that the Claimant was intentionally untruthful, the Claimant disregarded the plain reading of the documents, e.g. Mr Dourado’s evidence about her work. There were no findings of discrimination or harassment. The Claimant added matters that were never there, this increased the scope of case and so increased the costs. The Claimant would not accept the reality of the situation and put the School in a position where they had to defend the serious allegations. The Claimant made allegations unsupported by the evidence and did not engage with the evidence but persisted with her attitude. The Respondent accepts that the Claimant is of limited means. The Respondent’s total costs are £70,000 but are only claiming £20k. The Respondent made an offer of £10k to the Claimant to settle. The Claimant’s schedule of loss was £160k.

[196]In summary, the Claimant’s oral response to the application was that the evidence presented did seem to have prospects. The Claimant disagreed that she had been unreasonable, if anything it was the Respondent who was unreasonable in that they changed the bundle and they made all the witnesses statement references to the bundle one page out. They added also documents much later on after the deadline for the bundle had run out. The Claimant said that she had three lawyer friends looked at her case who said that she had a very strong case. The Claimant said that one of her lawyer friends only read the Claimant’s witness statement. The Claimant felt that her documents were ignored, she found it a very stressful process. The Claimant said she felt she was not being unreasonable as she believed she had a strong case; she said that she would have accepted the settlement. The Claimant was asked what she considered her unreasonable behaviour to be considering she had already had a costs order against her. The Claimant said that she did not know she was being unreasonable until the Employment Tribunal told her she was and made a costs order. She still was not sure what she had done. Law on costs

[197]The Employment Tribunal must consider rule 76 ETR, which says: 76.— When a costs order or a preparation time order may or shall be made(1) A Tribunal may make a costs order or a preparation time order, and shall consider whether to do so, where it considers that— (a) a party (or that party's representative) has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the proceedings (or part) or the way that the proceedings (or part) have been conducted; (b) any claim or response had no reasonable prospect of success (c) a hearing has been postponed or adjourned on the application of a party made less than 7 days before the date on which the relevant hearing begins.

(2) A Tribunal may also make such an order where a party has been in breach of any order or practice direction or where a hearing has been postponed or adjourned on the application of a party.

[198]When determining an application for costs, the Employment Tribunal should apply a three- stage approach:a. Is the relevant jurisdictional threshold in rule 76 met?

b. If so, should the ET exercise its discretion in favour of making a costs order?

c. If so, what sum of costs should the ET order?

[199]For the purposes of rule 76(1)(a) the word “unreasonable” is to be given its ordinary English meaning and is not to be interpreted as meaning something similar to vexatious (Dyer v Secretary of State for Employment

UKEAT/0183/83

). The Tribunal should consider the nature, gravity and effect of the unreasonable etc conduct, but it is appropriate to avoid a formulaic approach and have regard to the totality of the relevant conduct. As Mummery LJ explained in Yerrakalva v Barnsley MBC

[2012] ICR 420

, CA at paragraph 41: “The vital point in exercising the discretion to order costs is to look at the whole picture of what happened in the case and to ask whether there has been unreasonable conduct by the Claimant in bringing and conducting the case and, in doing so, to identify the conduct, what was unreasonable about it and what effects it had […]”

[200]It should, however, be noted that the Tribunal is not confined to making an award limited to those costs caused by the unreasonable conduct. As Mummery LJ confirmed in McPherson v BNP Paribas (London Branch)

[2004] ICR 1398

, CA:

[201]In considering whether the conduct of litigation is unreasonable, the Tribunal must bear in mind that in any given situation, there may be more than one reasonable course to take. The Tribunal must not substitute its view for that of the litigant about which course of action was taken: Solomon v University of Hertfordshire, Hunter and Hammond (

UKEAT/0258/18

- 19/DA) at paragraph 107. If the course of action was reasonable, but the Tribunal or costs applicant would have followed a different route, the Tribunal should not interfere with the decision of the person who is defending the costs application.

[202]In circumstances where the Tribunal finds that the jurisdictional threshold in rule 76 is met, the Tribunal retains a broad discretion as to whether to make a costs order and the amount of any costs awarded.

[203]In deciding whether to make an award of costs, a litigant in person is not to be judged by the standards of a legal professional: see Vaughan v London Borough of Lewisham & Others

[2013] IRLR 713

at paragraph 25. Analysis and conclusions on costs

[204]The Respondent made an application for costs, based upon rule 76 (1) (a) & (b) ETR. The Respondent did not tell us that they gave the Claimant any notice of costs. The Claimant told us that she had received some advice from lawyer friends and they told her based upon her only telling them her case and not the Respondent’s that she had a very strong case. We find it difficult to believe that any lawyer let alone 3 would advise any one, let alone a friend that they had a very strong case without seeing the other side. However, it is clear to the Employment Tribunal, that the Claimant had done some research and did have some understanding limited that it was of what she needed to prove to be successful. We do not think that the Claimant behaved unreasonably but lacked legal understanding of what discrimination is and what was required to prove it. We do not apply the standard of a lawyer to the Claimant who is a litigant in person, notwithstanding the Claimant appeared to lack an appreciation of what unreasonable behaviour was that resulted in a costs order against her in these same proceedings. The Tribunal reminded ourselves, costs is the exception not the rule and that costs are compensatory and not punitive. We considered all the matters raised by the parties. We considered there were issues in the case that were not open and shut and could not be separated from the rest of the case i.e. unfair dismissal claim and those issues in the case did need to be tested. We consider that the threshold had not been reached for awarding costs and we do not award costs. Reconsideration

[205]Following the hearing the Claimant raised the fact that she had a claim in time in respect of direct discrimination allegation against Mrs Bal-Richards under issue 5.2.21 & harassment under issue 6.1 in relation to the management advice letters dated 4 & 9 November 2022.

[206]We consider that we had therefore based our finding in relation to the time issue as not being linked to any other allegations in time as incorrect. Of our own initiative we therefore reconsider our findings in this respect in that there were allegations in time that could be linked as a continuing act.

[207]Reconsideration is covered by the Employment Tribunal Rules of Procedure 2013, rules 70 – 73. In particular rule 70 states: “Principles 70. A Tribunal may, either on its own initiative (which may reflect a request from the Employment Appeal Tribunal) or on the application of a party, reconsider any judgment where it is necessary in the interests of justice to do so. On reconsideration, the decision (“the original decision”) may be confirmed, varied or revoked. If it is revoked it may be taken again.

[208]We revoke our finding that “The acts complained of by the Claimant post August 2022 were not in any way linked to Mrs Bal-Richards. The only acts that took place after August 2022 were carried out by the governing body in the Claimant’s dismissal. There was no evidence that the governing body was acting on behalf of Mrs Bal-Richards and the Claimant did not posit this at any point.” Since we already found that none of the letters dated 4 & 9 November 2022 amounted to harassment or amounted to religious direct discrimination, the time point is inconsequential and had no bearing or determination on the Employment Tribunal’s decision as to whether the Claimant’s claims were in time as there was no discrimination/harassment that would permit the Employment Tribunal to consider all the acts carried out by Mrs Bal-Richards as continuing acts and it was not just and equitable to extend time as the Claimant provided no good reason as to why she did not bring her claims in time. CORRECTED JUDGMENT

Relevant Law

[1]The judgment of Employment Judge Young dated 11 September 2024 is corrected to include that the Claimant’s unfair dismissal claim was not well founded and is dismissed. CORRECTED REASONS

[2]There has been an accidental slip/clerical error, with the judgment not mentioning the Claimant’s unfair dismissal claim is not well founded and is dismissed. The parties were told in oral judgment and written reasons that the decision to dismiss the Claimant was within the range of reasonable responses and the dismissal fair. This judgment merely corrects that accidental slip/clerical error pursuant to rule 67 of the 2024 Employment Tribunal rules of procedure. Approved by: RECONSIDERATION

Relevant Law

[1]I have undertaken preliminary consideration of the Claimant's application for reconsideration. The application

[2]All reference to points below are aligned with the Claimant’s numbering in her application.

[3]There was no duress by the Employment Tribunal or the judge in respect of the Claimant’s withdrawal of her claims. For the Claimant to make such an unfounded allegation with no evidence whatsoever is highly inappropriate and unacceptable. The Claimant was asked if she was withdrawing her claims. The Claimant nodded and said yes. The Claimant confirmed her withdrawal in writing. The Employment Tribunal did not say or do anything to make or influence unduly the withdrawal of the Claimant’s claims. 1. There has been no misstatement of facts. What the Claimant is describing is a different interpretation of the facts that the Employment Tribunal came to. A Tribunal will not reconsider a finding of fact just because the Claimant wishes it had gone in her favour.

[4]The issues raised in point 3 are essentially issues of procedural irregularities rather than reconsideration. They do not appear to have any relevance to any findings that the Employment Tribunal had to make or indeed did make. The Claimant did not raise any of the issues about the documents or bundle she now raises at the Employment Tribunal hearing. None of the issues the Claimant raises now mean that the overriding objective was not adhered to, and justice was not done. Points 4,6,7,8,9,12 and 13 2. There appears to be no point 5 or point 10. All the points listed (4,6,7,8,12,13) are matters of law, more appropriately dealt with on appeal and not reconsideration as they attempt to assert there has been a misapplication of the law. Other points are attempts to re-open issues of fact on which the Tribunal heard evidence from both sides and determined. The majority of the grounds represent a “second bite at the cherry” which undermines the principle of finality. It is only if the Tribunal has missed something important, or if there is new evidence available which could not reasonably have been put forward at the hearing that have the possibility of a reasonable prospect of resulting in the decision being varied or revoked.

[5]The Claimant has not explained how the ‘new evidence’ that she now relies upon is new evidence and not evidence that the Claimant could have obtained in time for the Employment Tribunal hearing with reasonable diligence. In any event none of the ‘new evidence’ that the Claimant refers to would probably have had an important influence on the case. The Claimant has not for example provided any witness statements or evidence that the witnesses that she refers to that say anything about discrimination in the school, but the Claimant’s points are an expression of her opinion of what she thinks those witnesses might potentially say. This is not new evidence but the Claimant’s views about hers and other experiences at the school, which she expressed in evidence before the Employment Tribunal in her case and which were considered and rejected.

[6]The omission of a reference to the dismissal of the unfair dismissal claim in the judgment has now been addressed with the issuing of a correction judgment. There is no question that it was clear to the Claimant that the Claimant’s claim for unfair dismissal failed as the Claimant was told that her dismissal was found to be fair when oral reasons were given and that was contained in the written reasons. This was a clerical error, now rectified under the slip rule.

[7]The Claimant’s application for a preparation time order (‘PTO’) was not put before Employment Judge Young until 6 February 2025 after 4pm. The PTO application has now been dealt with in separate correspondence. As there has not been a judgment on the PTO, there can be no reconsideration of it.

The Law

[8]An application for reconsideration is an exception to the general principle that (subject to appeal on a point of law) a decision of an Employment Tribunal is final. The test is whether it is necessary in the interests of justice to reconsider the judgment (rule 68 of the 2024 Rules of Tribunal Procedure).

[9]Rule 70(1) of the 2024 Rules of Tribunal Procedure empowers me to refuse the application based on preliminary consideration if there is no reasonable prospect of the original decision being varied or revoked.

[10]Rule 69 of the 2024 Rules of Tribunal Procedure says “Except where it is made in the course of a hearing, an application for reconsideration shall be presented in writing (and copied to all the other parties) within 14 days of the date on which the written record, or other written communication, of the original decision was sent to the parties or within 14 days of the date that the written reasons were sent (if later) and shall set out why reconsideration of the original decision is necessary.”

[11]In Outasight VB Ltd v Brown [2015] ICR D11, the Employment Appeals Tribunal (‘EAT’) confirmed that the law regarding the reconsideration of a judgment in light of new evidence did not change with the introduction of the 2013 or 2024 Tribunal Rules. The interests of justice test include the conditions set out in Ladd v Marshall

[1954] 3 ALL ER 745

. In summary: 1) it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial, 2) the evidence must be such that, if given, it would probably have an important influence on the result of the case, 3) the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, although it need not be incontrovertible.

[12]The EAT’s decision in Wileman v Minilec Engineering Ltd

[1988] IRLR 144

expands on the application of the Ladd v Marshall conditions. In Wileman, the EAT said that the evidence must not only be relevant, but it must be probable that it would have had an important influence on the case as Tribunal hearings are designed to be speedy, informal, and decisive. It is not necessary that the new evidence be shown to be likely to be decisive. The question for the tribunal on reconsideration is “in the light of what we know about this case, has it been shown to us that the evidence is relevant and probative, and likely to have an important influence on the result of the case?” (paragraph 15 of Wileman v Minilec).

[13]The approach to be taken to applications for reconsideration was considered in the case of Liddington v 2Gether NHS Foundation Trust

UKEAT/0002/16/DA

. In paragraph 34 of that decision, Simler P stated that: “a request for reconsideration is not an opportunity for a party to seek to relitigate matters that have already been litigated, or to reargue matters in a different way or by adopting points previously omitted. There is an underlying public policy principle in all judicial proceedings that there should be finality in litigation, and reconsideration applications are a limited exception to that rule. They are not a means by which to have a second bite at the cherry, nor are they intended to provide parties with the opportunity of a rehearing at which the same evidence and the same arguments can be rehearsed but with different emphasis or additional evidence that was previously available being tendered.”

[14]The importance of finality was confirmed by the Court of Appeal in Ministry of Justice v Burton and anor

[2016] EWCA Civ 714

where Elias LJ said that: “the discretion to act in the interests of justice is not open-ended; it should be exercised in a principled way, and the earlier case law cannot be ignored. In particular, the courts have emphasised the importance of finality (Flint v Eastern Electricity Board

[1975] ICR 395

) which militates against the discretion being exercised too readily; and in Lindsay v Ironsides Ray and Vials

[1994] ICR 384

Mummery J held that the failure of a party's representative to draw attention to a particular argument will not generally justify granting a review.”

[15]As is the case with all powers under the 2024 Tribunal Rules of Procedure, any preliminary consideration under rule 70(1) must be conducted in accordance with the overriding objective which appears in rule 2, namely, to deal with cases fairly and justly. This includes dealing with cases in ways which are proportionate to the complexity and importance of the issues and avoiding delay. Achieving finality in litigation is part of a fair and just adjudication.

Conclusion

[16]Having considered all the points made by the Claimant I am satisfied that there is no reasonable prospect of the original decision being varied or revoked. I must also have regard to the public interest requirement so far as is possible there be finality of litigation. In the circumstances, the Claimant’s application for reconsideration is refused. Approved by:

Background

[1]Following the full merits hearing on 9-10,12,15,17-19, 22 July & 11 September 2024 the Claimant’s complaints were not upheld. On 18 September 2024 the Claimant applied for written reasons for the judgment and costs. In the application, the Claimant’s grounds for a costs order were the Respondent’s late submission of documents, duplication of documents, misaligned pages in the bundle and the alleged omission and alteration of documents.. The Claimant set out in her witness statement an allegation that the Respondent altered disciplinary investigation meeting notes in July 2021, having words of discrimination removed. However, there was no finding by the Employment Tribunal in relation to the disciplinary investigation notes.

[2]Additionally the Claimant had made an application on 25 June 2024 complaining that the Respondent had not complied with the Employment Tribunals orders by including additional documents outside the Employment Tribunal orders directions. The Claimant said that she had insufficient time to review the additional documents. However, in the same correspondence the Claimant accepted that the documents added to the bundle included documents that the Claimant herself had submitted. Although the Claimant stated that she would not object to those documents being excluded to maintain consistency and fairness. Notwithstanding the Claimant had the documents 2 weeks before the hearing took place. Furthermore, at the hearing on the first day the Claimant accepted all the documents as permitted to be included in the bundle and did not pursue any applications in respect of those documents.

[3]The Claimant was not legally represented and so on 1 December 2024 the Claimant made the costs application again requesting that application be treated as an application for a preparation time order. The Claimant requested 50 hours. By letter dated 10 February 2025, the Employment Tribunal wrote to the Claimant to ask the Respondent and Claimant whether a hearing was necessary for the Preparation Time Order application and whether the application should be granted or not and to respond by 17 February 2025. The Respondent responded on 10 February 2024 objecting to the application and the listing of a hearing. The Respondent made an application for wasted costs in respect of the Claimant’s Preparation Time Order application. The Claimant did not respond to the Employment Tribunal’s letter dated 10 February 2025 as to whether a hearing was necessary. By letter dated 19 March 2025, the Employment Tribunal wrote to the Claimant requesting any further documentation that referred to her 18 September 2024 application and that supported it and to respond by 2 April 2025. The Claimant responded on 23 March 2025 but did not answer the question regarding whether there should be a hearing and did not provide any documentation to support her application. The Relevant Law on Costs – Preparation Time Order

[4]The relevant parts of Rule 74 Employment Tribunal Procedure Rules 2024 state: “(1) The Tribunal may make a costs order or a preparation time order (as appropriate) on its own initiative or on the application of a party or, in respect of a costs order under rule 73(1)(b), a witness who has attended or has been ordered to attend to give oral evidence at a hearing.

(2) The Tribunal must consider making a costs order or a preparation time order where it considers that— (a) a party (or that party’s representative) has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the proceedings, or part of it, or the way that the proceedings, or part of it, have been conducted, (b) any claim, response or reply had no reasonable prospect of success, or (c) a hearing has been postponed or adjourned on the application of a party made less than 7 days before the date on which that hearing begins.

(3) The Tribunal may also make a costs order or a preparation time order (as appropriate) on the application of a party where a party has been in breach of any order, rule or practice direction or where a hearing has been postponed or adjourned…..”

[5]Rule 75 states: “(1) A party may apply for a costs order or a preparation time order at any stage up to 28 days after the date on which the judgment finally determining the proceedings in respect of that party was sent to the parties. (2) The Tribunal must not make a costs order or a preparation time order against a party unless that party has had a reasonable opportunity to make representations (in writing or at a hearing, as the Tribunal may order).” The relevant part of rule 77 states: “ The amount of a preparation time order(1) The Tribunal shall decide the number of hours in respect of which a preparation time order should be made, on the basis of— (a) information provided by the receiving party on time spent falling within rule 75(2) above; and (b) the Tribunal's own assessment of what it considers to be a reasonable and proportionate amount of time to spend on such preparatory work, with reference to such matters as the complexity of the proceedings, the number of witnesses and documentation required.

(2) The hourly rate is £44 and increases on 6 April each year by £1.

(3) The amount of a preparation time order shall be the product of the number of hours assessed under paragraph (1) and the rate under paragraph (2) which is applicable to the year beginning 6 April in which the preparation time was spent….”

[6]In deciding whether to make an order under the ground of unreasonable conduct, the Court of Appeal decision of McPherson v BNP Paribas (London Branch)

[2004] ICR 1398

concluded that a tribunal should take into account the ‘nature, gravity and effect’ of a party’s unreasonable conduct.

[7]In Yerrakalva v Barnsley Metropolitan Borough Council and Anor

[2012] ICR 420

the Court of Appeal, clarified the principle that in the Employment Tribunal costs are the exception not the rule.

Conclusions

[8]We considered both the Claimant’s application and case law referred to within (although some of the Claimant’s references were either not relevant to the issues we had to consider or we could not find any cases with the reference numbers provided) as well as the Claimant’s further correspondence and comments during the hearing. We also considered the Respondent’s response to the Claimants application. We had regard to the equal treatment bench book, the overriding objective and the fact that the Claimant was a litigant in person in coming to our decision.

[9]Having considered the gravity of the conduct described by the Claimant in her application, we find that it does not reach the threshold of unreasonable conduct sufficient to result in the Employment Tribunals exercise of discretion to award a Preparation Time Order.

[10]The Employment Tribunal did not make any findings that the Respondent intentionally altered disciplinary investigation notes and so there is no basis upon which we would decide that the difference between the notes that the Claimant received and the notes in the bundle amounted to unreasonable conduct. The fact that we had both sets of notes in the bundle would suggest otherwise. None of the matters the Claimant raised regarding the Respondent’s conduct were intentional or significant in how it affected the Claimant’s preparation.

[11]The fact that the Claimant did not request more time in relation to the late disclosure and did not make any further applications at the hearing indicated that the gravity of the Respondent’s conduct was not significant. The Claimant had 2 weeks to consider the new documents and that is not an unreasonable period to have to consider documentation notwithstanding some of the documents that the Claimant would review were her own documents.

[12]Duplicate documents whilst annoying do not impede the use of the bundle although it makes the bundle unnecessarily bigger than it needs to be.

[13]The misalignment of the bundle by 1 page whilst an impediment, was a minor annoyance and an impediment to all including the Respondent’s counsel. It did not give the Respondent an advantage as the Respondent did not do it on purpose and caused them the same problems. It required everyone to add one page to any page number. Misalignment of the bundle was not so a high obstacle to overcome for the Claimant as a litigant in person. At no point in the hearing did the Claimant get page numbers wrong that impeded the progress of the hearing or her cross examination. The Claimant managed to deal with the misalignment without any difficulty.

[14]None of this is to suggest that the Respondent’s conduct was acceptable, but that does not mean that it was unreasonable conduct. Neither does it mean that the Claimant’s application had no basis as the Respondent has suggested. In the circumstances we do not exercise our discretion to make a Preparation Time Order in favour of the Claimant or a costs order in favour of the Respondent. Approved by: