Mrs L R R MacLeod v Stirling Council: 4100548/2024
EMPLOYMENT TRIBUNALS (SCOTLAND)
Case No 4100548/2024Venue DundeeHearing 1 – 2 April 2025
Between
Mrs Li R R MacLeodClaimantStirling CouncilRespondent
Before
Employment Judge A KempMr M Ross (instructed by Solicitor) for claimantDr A Gibson (instructed by Solicitor) for respondentDate 14 April 2025
JUDGMENT
The unanimous Judgment of the Tribunal is that the respondent did not directly discriminate against the claimant because of her race or belief under section 13 of the Equality Act 2010 and the Claim is dismissed.
REASONS
[1]This Final Hearing was arranged to address a claim of direct discrimination on the protected characteristics of race and belief. E.T. Z4 (WR)[2]There had been two Preliminary Hearings, held on 17 April and 3 July 2024. At the first such hearing the claims made by the claimant were noted, and it was agreed that further particulars of them were required. They were then provided by the claimant. After the second such hearing a Final Hearing was arranged for November 2024, but that was postponed because of a matter raised in correspondence, of consent, and the present Hearing dates fixed.[3]Dr Gibson for the respondent helpfully accepted both that the claimant not being appointed to the two posts she had set out in her Further Particulars was less favourable treatment, and that the belief she founded on was a belief within the terms of section 10 of the Equality Act 2010. There was no dispute therefore that she had the protected characteristics of race and belief. The case was essentially about causation, as to why the claimant had not been appointed to two posts she had applied for.
Issues
[4]The solicitors agreed that the issues before the Tribunal were –(i) Did the respondent not appoint the claimant to the posts she applied for on 29 August 2024 and 14 September 2024 because of her race or belief contrary to section 13 of the Equality Act 2010?(ii) If so, to what remedy is the claimant entitled? The evidence[5]The parties had prepared documentation in the form of a single Bundle, most but not all of which was spoken to in evidence. The claimant gave evidence herself, calling no other witnesses and the respondent called three witnesses.
The facts
[6]The Tribunal found the following facts, material to the issues before it, to have been established on the evidence. Parties[7]The claimant is Mrs Li Rong Rong MacLeod. She is a Chinese person. She holds the belief of public opposition to the Chinese Communist Party and Government.[8]The respondent is Stirling Council.[9]The claimant has been employed by the respondent as a Support for Learning Assistant (“SLA”).[10]When living in China the claimant was a member of the Communist Party. She first came to the UK in 1987. She is fluent in Mandarin and English. In 1989 whilst in the UK she resigned her membership of the Communist Party following the Tiananmen Square massacre. She participated in a public protest outside the Chinese Embassy in London. She was contacted thereafter by telephone and in person whilst living in Ipswich by representatives of the Chinese Embassy seeking to dissuade her from doing so. As a result her then employer relocated her to Scotland to avoid such contact.[11]The claimant married in 1992, and was in Hong Kong until 1997 when she returned to the UK and settled in Stirling. Employment[12]The claimant commenced working with the respondent as a tutor in 2003. She remained in that role until 11 July 2016. The claimant also registered with General Teaching Council Scotland. The claimant then worked in roles for the respondent in various schools as a Secondary Supply Teacher and Supply Support for Learning Assistant.[13]The respondent operates lists of those who may be appointed to posts as supply teachers, or as Supply Support for Learning Assistants. The claimant was admitted to those lists. She remains on them. Where there is a post for up to 28 days it is administered by the respondent’s Customer Services Team. Permanent posts or those which are temporary for more than 28 days are administered separately, and may be advertised either by emails sent to those on the list and more widely on a website called myjobScotland. October 2020[14]In October 2020 the claimant was working for the respondent as a Supply Teacher at Bannockburn High School. The Head Teacher there was, and remains, Ms Karen Hook. Ms Hook received a message that the claimant wished to speak with her, and met her in her office at the school during lunchtime. The claimant stated how well several of the pupils spoke Mandarin. Those pupils had come from Braehead Primary School, which has a Mandarin teacher with funding provided indirectly from the Confucius Institute. The claimant was enthusiastic about teaching those pupils Mandarin and raised the possibility of funding for a teacher at Bannockburn High School to do so.[15]Ms Hook did not have the funding to do so, although stated that she would check that further. Ms Hook suggested that one option was that the claimant teach a club at lunchtime or after school hours if she wished to. Ms Hook later ascertained that 0.5 of a full-time teacher could be funded, but that the school would require to fund the other 0.5 and it did not have the budget to do so. . Application 1[16]The respondent advertised four positions as full time Support for Learning Assistant (SLA) roles at Bluebell House, at Bannockburn High School, by email sent from the email account of a member of the customer services team on 28 August 2023. Bluebell House was a new facility at the said school to address pupils with additional support needs (ASN). The school was in the process of building new premises for doing so, but had not completed that and was using two classrooms and a breakout room in order to do so. It had not been able to appoint a permanent Principal Teacher for it. Initially the School proposed to recruit four SLA staff for work in that facility.[17]The claimant received that email and applied by email early in the morning on the following day. The original email from the respondent had in error been sent from a personal email account, such that there was no immediate reply. The issue was addressed by others within the team, including Ms Watson, and there were email exchanges with the claimant. On 30 August 2023 Ms Heather Crorken of that team emailed the claimant to state “I have booked you in for this…..”.[18]On 31 August 2023 Ms Sharon Kelly, the said School’s Resource Officer, emailed the claimant to state that “Since the start of this week our situation has changed in Bluebell House whereby we are being given extra support from our Outreach team which may negate the need for SLA support. I will have an update on the situation tomorrow….”[19]On 1 September 2023 Ms Kelly emailed the claimant to state “As a result of the additional support being provided from ASN Outreach we do not require your support in Bluebell House at this time…..”[20]That was a reference to support that the respondent had agreed to provide for pupils within Bluebell House, which included a Principal Teacher and about eight other teachers who worked there on a rota basis. They were all existing staff of the respondent in its central resource, known as ASN Outreach. That resource was provided to schools both primary and secondary within the Stirling Council area, where that was required for pupils with additional support needs. It was provided by the respondent to the said school as Bluebell House was a new facility but with temporary premises and as no permanent Principal Teacher had been appointed at that point by the school. That additional resource having been provided from ASN Outreach, the said school did not require any of the four SLA roles it had earlier advertised for. The booking of the claimant for that role was withdrawn solely for that reason.[21]The support from ASN Outreach continued until around August 2025. In March 2024 a new and permanent Principal Teacher was appointed, and other members of staff including SLAs were appointed thereafter. Application 2[22]The respondent sent an email to those on the supply list with a document amounting to an advertisement on 6 September 2023 for a Temporary Part-Time role as SLA for 27.5 hours per week for the period to 28 June 2024 at Stirling High School. The Job Description for the role was referred to in the document attached to that email and included that “Applications are invited from enthusiastic, reliable, and selfmotivated individuals who have the vision and energy to support the current levels of achievement by assisting departments with the preparation of course work, materials, ingredients for cookery, photocopying and general admin task to help facilitate the continued development and process of the pupils at Stirling High School.”[23]The document also stated “We encourage applications from the right candidates regardless of age (restrictions apply to Modern Apprenticeships), disability, gender identity, sexual orientation, religion, belief or race.”[24]There was a Person Specification for the role [which was not before the Tribunal]. It had two essential criteria, the first being experience in the role of SLA and the second to the effect of experience in dealing with pupils exhibiting challenging behaviours, including for example those with ADHD. That second criterion reflected the key aspects of the role that was being recruited for.[25]The claimant applied for that role on 14 September 2023. Her application set out her qualifications and experience, with particular emphasis on her roles in teaching, but did not set out experience of dealing with such pupils with challenging behaviours or matters related to that.[26]The respondent received fourteen written applications. A sift of them was conducted by Ms Fiona McGonigle, the School Resource Officer of Stirling High School. She reviewed all of the applications, and decided that four persons should be called for interview, all of whom met both of the essential criteria from the terms of their application forms. One of those was a person with a disability who under the respondent’s processes was guaranteed an interview. The other three applicants who were called for interview had set out experience of dealing with pupils exhibiting challenging behaviour or related such experience in their application forms.[27]The process of assessing who to call for interview was conducted by allocating a tick against those candidates who met the criteria. Those candidates who were assessed as not having done so were identified by a lesser number of ticks, and not selected for that reason [there was no document before the Tribunal showing the number of ticks so awarded]. Once not selected they received a standard form letter automatically to confirm that their application had not been successful.[28]The claimant was not one of those called for interview as Ms McGonigle did not award her a sufficient number of ticks. She was informed of that by email sent on 21 September 2023. The other nine applicants who were not selected for interview received the same email as the claimant did.[29]Ms McGonigle had had training in assessing applications but not specifically in matters of equality and diversity. She was not aware of the claimant’s beliefs when making the assessment. It was apparent from the claimant’s application form that she had been born in and educated initially in China. Other matters[30]In about 2019 a vacancy for a permanent teacher of Mandarin existed at Stirling High School. The person appointed to it was Mr Li Hung Yu. The claimant considered that she had not had an opportunity of applying for that role.[31]The respondent has continued to provide the claimant with work as a supply teacher or supply SLA from time to time, most recently in March 2025. In the period from 2023 to March 2025 the respondent’s customer services team confirmed the claimant to about ten roles, although they were not aware whether there was any change to that confirmation after it was given.[32]Schools within the respondent’s area relatively frequently change arrangements for booking supply staff, as the circumstances at the School can change. As one example, a person off work ill who is anticipated to be absent for a longer period may return more quickly than expected.[33]The Confucius Institute provides some funding for teaching of Mandarin, and in relation to the promotion of Chinese culture, within the United Kingdom. There is an agreement between the University of Strathclyde and the respondent for funding of teachers of Mandarin, which supports such a teacher of Mandarin at Stirling High School, with part of the funding for the same provided to the University of Strathclyde by the Confucius Institute. There is also a teacher of Mandarin at Braehead Primary School from a similar funding arrangement.[34]Pupils at Braehead Primary School on leaving primary school thereafter attend either Stirling High School or Bannockburn High School depending on where they live. Bannockburn High School does not have a teacher of Mandarin and has not had that in the past. Early Conciliation[35]The claimant commenced early conciliation on 20 November 2023 and received the Certificate for the same on 1 January 2024. The Claim Form in this claim was presented to the Tribunal on 29 January 2024. The claimant’s submission[36]The following is a very basic summary of the submission that was provided primarily in writing, and supplemented briefly orally. It was submitted that the claimant had given her evidence as to why she believed that she had been discriminated against and that, with the evidence from the respondent’s witnesses were sufficient to show that. It was submitted that the claimant should find for the clamant. Reference was made to a number of authorities, some of which are noted below. Respondent’s submission[37]The following is again a very basic summary of the submission that was provided orally. The respondent’s evidence should be accepted. There were no facts from which discrimination could be inferred, rather there was direct evidence of it not having taken place. There was no comparator either actual or hypothetical for the Bannockburn High School post as it was withdrawn. The claimant was not offered an interview for the post at Stirling High School for impartial and fair reasons in relation to the application she made. Ten of the fourteen applicants were not interviewed. One of the four who was had a guarantee of interview. The other three had application forms setting out their experience relevant to the post. The claim should be dismissed.
The law
[38]The law relating to discrimination is found in statute and case law, and account may be taken of guidance in the statutory Code of Practice issued by the Equality and Human Rights Commission: Employment. (i) Statute[39]Section 4 of the Equality Act 2010 (“the 2010 Act”) provides that race and belief are each a protected characteristic. Section 9(1)(a) defines race, which includes nationality. Section 10 defines a belief.[40]Section 13 of the 2010 Act provides as follows: “13 Direct discrimination A person(a) (A) discriminates against another(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.”[41]Section 23 of the 2010 Act provides “Comparison by reference to circumstances (1) On a comparison of cases for the purposes of sections 13, 14 and 19 there must be no material difference between the circumstances relating to each case….”[42]Section 39 of the 2010 Act provides: “39 Employees and applicants …… (2) An employer(a) (A) must not discriminate against a person(b) (B) – …….. (d) by subjecting B to any other detriment…...”[43]Section 136 of the 2010 Act provides: “136 Burden of proof If there are facts from which the tribunal could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned the tribunal must hold that the contravention occurred. But this provision does not apply if A shows that A did not contravene the provision.” (ii) Case law[44]The basic question in a direct discrimination case is: what are the grounds or reasons for the treatment complained of? In Amnesty International v Ahmed [2009] IRLR 884 the EAT recognised two different approaches from two House of Lords authorities -(i) in James v Eastleigh Borough Council [1990] IRLR 288 and(ii) in Nagaragan v London Regional Transport [1999] IRLR 572. In some cases, such as James, the grounds or reason for the treatment complained of is inherent in the act itself. In other cases, such as Nagaragan, the act complained of is not discriminatory but is rendered so by discriminatory motivation, being the mental processes (whether conscious or unconscious) which led the alleged discriminator to act in the way that he or she did. The intention is irrelevant once unlawful discrimination is made out. That approach was endorsed in R (on the application of E) v Governing Body of the Jewish Free School and another [2009] UKSC 15 which referred to the distinction between something inherently discriminatory and that which is subjectively so, where the reason for the less favourable treatment is not immediately apparent.[45]The Tribunal should draw appropriate inferences from the conduct of the alleged discriminator and the surrounding circumstances (with the assistance, where necessary, of the burden of proof provisions referred to further below) – as explained in the Court of Appeal case of Anya v University of Oxford [2001] IRLR 377. Less Favourable Treatment[46]In Glasgow City Council v Zafar [1998] IRLR 36, a House of Lords case, it was held that it is not enough for the claimant to point to unreasonable behaviour and having a protected characteristic. He must show less favourable treatment, one of whose effective causes was the protected characteristic relied on. Although something more than unreasonable behaviour and the protected characteristic is required that need not be a great deal: Deman v Commission for Equality and Human Rights and ors 2010 EWCA Civ 1279. Comparator[47]In Shamoon v Chief Constable of the RUC [2003] IRLR 285, also a House of Lords authority, Lord Nicholls said that a tribunal may sometimes be able to avoid arid and confusing debate about the identification of the appropriate comparator by concentrating primarily on why the complainant was treated as she was, and leave the less favourable treatment issue until after they have decided what treatment was afforded. Was it on the prescribed ground or was it for some other reason? If the former, there would usually be no difficulty in deciding whether the treatment afforded the claimant on the prescribed ground was less favourable than afforded to another.[48]The comparator, where needed, requires to be a person who does not have the protected characteristic but otherwise there are no material differences between that person and the claimant. Guidance was given in Balamoody v Nursing and Midwifery Council [2002] ICR 646, in the Court of Appeal.[49]The EHRC Code of Practice: Employment provides, at paragraph 3.28: “Another way of looking at this is to ask, 'But for the relevant protected characteristic, would the claimant have been treated in that way?'” Substantial, not the only or main, reason[50]In Owen and Briggs v Jones [1981] ICR 618 it was held that the protected characteristic would suffice for the claim if it was a “substantial reason” for the decision. In O’Neill v Governors of Thomas More School [1997] ICR 33 it was held that the protected characteristic needed to be a cause of the decision, but did not need to be the only or a main cause. In Igen v Wong [2005] IRLR 258 the test was refined further such that it part of the reasoning that was more than a trivial part of it could suffice in this context: in that context it referred to Nagarajan: “Decisions are frequently reached for more than one reason. Discrimination may be on racial grounds even though it is not the sole ground for the decision. A variety of phrases, with different shades of meaning, have been used to explain how the legislation applies in such cases: discrimination requires that racial grounds were a cause, the activating cause, a substantial and effective cause, a substantial reason, an important factor. No one phrase is obviously preferable to all others, although in the application of this legislation legalistic phrases, as well as subtle distinctions, are better avoided so far as possible. If racial grounds or protected acts had a significant influence on the outcome, discrimination is made out.”[51]The law was summarised in JP Morgan Europe Limited v Chweidan [2011] IRLR 673, heard in the Court of Appeal. Lord Justice Elias said the following (in a case which concerned the protected characteristic of disability): “In practice a tribunal is unlikely to find unambiguous evidence of direct discrimination. It is often a matter of inference from the primary facts found. The burden of proof operates so that if the employee can establish a prima facie case, ie if the employee raises evidence which, absent explanation, would be enough to justify a tribunal concluding that a reason for the treatment was the unlawfully protected reason, then the burden shifts to the employer to show that in fact the reason for the treatment is innocent, in the sense of being a non-discriminatory reason”. Detriment[52]The key question is - “Is the treatment of such a kind that a reasonable worker would or might take the view that in all the circumstances it was to his detriment?” Shamoon. It is to be interpreted widely in this context – Warburton v Chief Constable of Northamptonshire Police EA-2020- 000376 and EA-2020-001077 Burden of proof[53]There is a normally two-stage process in applying the burden of proof provisions in discrimination cases, whether for direct discrimination or victimisation, as explained in the authorities of Igen v Wong [2005] IRLR 258, and Madarassy v Nomura International Plc [2007] IRLR 246, both from the Court of Appeal. The claimant must first establish a first base or prima facie case by reference to the facts made out. If he does so, the burden of proof shifts to the respondent at the second stage. If the second stage is reached and the respondent’s explanation is held to be inadequate, it is necessary for the tribunal to conclude that the claimant’s allegation in this regard is to be upheld. If the explanation is adequate, that conclusion is not reached. It may not always be necessary to follow that two stage process as explained in Laing v Manchester City Council [2006] IRLR 748.[54]Discrimination may be inferred if there is no explanation for unreasonable behaviour (The Law Society v Bahl [2003] IRLR 640 (EAT), upheld by the Court of Appeal at [2004] IRLR 799.)[55]In Ayodele v Citylink Ltd [2018] ICR 748, the Court of Appeal rejected an argument that the Igen and Madarassy authorities could no longer apply as a matter of European law, and held that the onus did remain with the claimant at the first stage. That it was for the claimant to establish primary facts from which the inference of discrimination could properly be drawn, at the first stage, was then confirmed in Royal Mail Group Ltd v Efobi [2019] IRLR 352 at the Court of Appeal, and upheld at the Supreme Court, reported at [2021] IRLR 811. The Supreme Court said the following in relation to the first stage, at which there is an assessment of whether there are facts established in the evidence from which a finding of discrimination might be made: “At the first stage the tribunal must consider what inferences can be drawn in the absence of any explanation for the treatment complained of. That is what the legislation requires. Whether the employer has in fact offered an explanation and, if so, what that explanation is must therefore be left out of account.”[56]In Igen Ltd v Wong [2005] ICR 931 the Court of Appeal said the following in relation to the requirement on the respondent to discharge the burden of proof if a prima facie case was established, the second stage of the process if the burden of proof passes from the claimant to the respondent: “To discharge that burden it is necessary for the respondent to prove, on the balance of probabilities, that the treatment was in no sense whatsoever on the grounds of sex, since ‘no discrimination whatsoever’ is compatible with the Burden of Proof Directive.”[57]In Hewage v Grampian Health Board 2012 IRLR 870 the Supreme Court approved the guidance from the authorities of Igen and Madarassy.[58]The Tribunal must also consider the possibility of unconscious bias, as addressed in Geller v Yeshurun Hebrew Congregation [2016] ICR 1028. It was an issue addressed in Nagarajan. Observations on
The evidence
[59]The witnesses are addressed in the order in which they gave evidence. The claimant was we considered seeking to give honest evidence. Her belief that she had been discriminated against because of race or belief or both was genuine. We have however concluded that it was not founded in evidence, but was essentially based on suspicion largely as she had been booked initially for the first post then that was reversed, and then as she had not been called for interview for the second post when she felt that she should have done. We appreciated that she had been the subject of some pressure in earlier years when she made her opposition to the Tiananmen Square massacre public, and we accepted her evidence in relation to visits to her and telephone calls, which must have been distressing. But we did not find any evidence of that background having an effect on how the respondent interacted with the claimant. That is in the context of the respondent providing supply work to the claimant from time to time outwith the two applications that were founded on for the purposes of the present claim.[60]Ms McGonigle the School Resource Officer of Stirling High School was we considered a credible and reliable witness. She had lengthy experience of dealing with applications for posts such as SLA, and addressed clearly why she did not call the claimant for interview. We accepted her evidence that belief played no part in that as she was not aware of the claimant’s political beliefs. As such that could not have played any part in her assessment either consciously or subconsciously. So far as race is concerned it was clear from the application form that the claimant’s race and nationality were Chinese, but Ms McGonigle denied that that influenced her in any way. We accepted her evidence on that. There was a basis in the documentation for the distinction between calling some for interview, not the claimant, found in the claimant’s own application form compared with those who were interviewed. Whilst the process of allocating ticks to the applicants was not confirmed by a document before us, we were satisfied that that is how Ms McGonigle had conducted the process and that it was based on her assessment of the application form against the criteria, and that only. Race in our view did not play any part in that either consciously or sub-consciously.[61]Ms Hook was also we considered a credible and reliable witness. Her evidence as to the discussion between the claimant and her in October 2020 we preferred to that of the claimant. It appeared to us to be more likely. The claimant’s position was that Ms Hook had initiated the conversation but where there was no funding to teach Mandarin that appeared to us not to be consistent with common sense. It appeared to us that it was more likely that the conversation occurred as Ms Hook explained, with the possibility of volunteering being raised as there was not the funding for a full-time post as teacher of Mandarin.[62]We accepted Ms Hook’s evidence that belief played no part in that as she was not aware of the claimant’s political beliefs. So far as race is concerned it was clear to her that the claimant’s race and nationality were Chinese, but she denied that that influenced her in any way. We accepted her evidence on that. We also accepted her evidence of no influence in the decisions made from any outside person or organisation and that the change of the four SLA posts as advertised was because the ASN Outreach team of the respondent, a central resource, was made available.[63]Ms Watson was similarly we considered a credible and reliable witness. She explained the process the Customer Services Team she leads follows for managing vacancies, and the position in relation to the post at Bannockburn High School. She denied that anyone had sought to influence the decision either within the respondent or from outside it, and her evidence we accepted. Her role and that of her colleagues in that team was essentially administrative, rather than as decision-maker, but her evidence supported that of the respondent’s other witnesses.
Discussion
[64]The Tribunal considered all of the evidence it heard, and the full terms of the helpful submissions of each of the parties. It answers each of the issues which had been identified as above in the following paragraphs. It reached an unanimous decision. Was not appointing the claimant to the posts because of her race or belief in breach of section 13 of the 2010 Act?[65]There was no evidence we found that raised a prima facie case that race or belief played any substantial, in the sense of more than minor or trivial, part in the decisions the respondent took as to the two applications on which the claimant had founded. The fact of the claimant having a particular race or belief is not sufficient in law. She was concerned that the booking for the first had been changed, and she was not even interviewed for the second, but those concerns were not in our view borne out by the evidence we heard.[66]We should also state that the claimant’s Further Particulars, provided after the first Preliminary Hearing, and consistent with the terms of the Note from that hearing, relied only on those two applications. In her evidence the claimant sought to rely on other aspects, including when another person was appointed to a post in 2016. There had been no pleading of that and other matters beyond the detail in the Claim Form and Further Particulars. We considered that the case was limited to that which the claimant, acting with legal advice throughout, had pled. But even ignoring that there was no evidence we found of the decision-makers for either application taking race or belief into account consciously or subconsciously in any way at all.[67]The earlier matters, one of which related to events in Bannockburn High School in 2020, and the other of which related to the appointment of Mr Li Hung Yu, were in our view not any basis for a prima facie case. There was nothing in the former to indicate any decision on the basis of race or belief, and Ms Hook was not aware of the claimant’s beliefs. For the latter the person appointed was, from the evidence we heard, of Chinese ethnicity like the claimant and not therefore a comparator under the Act in relation to race as he shared that protected characteristic. There was no evidence as to belief playing any part in the decision and very little evidence about that aspect, such that there was in our view no primary fact beyond the claimant’s own suspicions. In order to establish a primary fact from which an inference could be drawn there required in our view to be evidence of someone specific doing something, or saying something, or a document to that same effect, and suspicion is not sufficient to do so. There was no evidence of such a sufficient primary fact.[68]In any event these were in our view discrete events unconnected to the two applications and how they were determined, and if each was a standalone matter (which had not been pled) each was one clearly out of time with no argument for just and equitable extension made under section 123 of the Act, such that for that separate reason both as to jurisdiction and pleading we did not consider that we could take them into account. But even had we done so, we did not consider that it could have led to a prima facie case being established.[69]So far as the post she applied for in August 2023 is concerned, the position was borne out by contemporaneous evidence, supplemented by evidence given orally particularly by Ms Hook, which we accepted. Although on 30 August 2023 the claimant was booked for the role as confirmed by email that date, on 31 August 2023 the claimant was informed that the situation had changed “we are being given extra support from our Outreach team which may negate the need for SLA support.” That was then confirmed further on 1 September 2023. The change of circumstances included provision of Principal Teacher and additional resource of about eight other teachers working on a rota as provided to the school from that central resource.[70]We were entirely satisfied that that occurred and was the sole reason for the change to the booking of the claimant. In short this was positive evidence of discrimination not having occurred. Whilst the claimant may have been suspicious that she was initially booked then cancelled, and we can see from her perspective given the background circumstances why she would be suspicious, there was in fact an entirely straightforward explanation for it. It was the explanation albeit briefly given to her at the time.[71]Anyone else who had registered for the post would have received the same message for the same reason. The claimant’s race or belief played no part in the decision at all, and indeed we were satisfied that the respondent acting through the decision-maker did not know of the claimant’s belief. There was also no comparator actual or hypothetical which could be identified or constructed. As a result of the change of circumstances the post ceased to be a vacancy.[72]The claimant’s argument that Ms Hook had in some way prevented the claimant from being appointed to a post because she had not agreed to work for free in teaching Mandarin in 2020 was rejected by Ms Hook clearly and convincingly, and there was no evidence for it in our view. Whilst the claimant may have suspected that it was what had occurred, we disagreed. We accepted Ms Hook’s evidence on that, as well as Ms Hook’s evidence on the detail of the conversation that had taken place in October 2020 for the reasons given above.[73]For the second post, Ms McGonigle of Stirling High School decided not to interview the claimant. There were fourteen applicants as well as the claimant. Her evidence that others had applications that merited an interview in competition with the claimant, and that she had not, we accepted. Again we accepted that she was not aware of the claimant’s belief. The claimant’s belief could have played no part whatsoever in the decision, in our view.[74]Nine other applicants for the post were not interviewed, such that this was not a case of the claimant alone being singled out. So far as the decision to interview was concerned we were satisfied that there were material differences between the application form sent by the claimant, and that by those who were interviewed, such that those who were interviewed were not comparators for the purposes of the Act in relation to the protected characteristic of race. In simple terms they had set out a basis to meet the second of the criteria, or in one case had the benefit of a guaranteed interview in light of disability (a protected characteristic that the claimant did not share).[75]The claimant argued that the Confucius Institute somehow influenced both decisions, such that they were taken on account of her beliefs. That we were clear was her genuine belief, but there was no evidence to support it. The Tribunal must have an evidential basis for primary facts on which to make such a finding, and a belief from the claimant however genuinely held cannot be a sufficient basis for doing so. Ms McGonigle and Ms Hook rejected any suggestion of that, and we accepted their evidence. Ms Watson had a lesser role and was not a decision maker but she also confirmed the same, and we accepted her evidence. Ms McGonigle had made the decision not to interview the claimant and nine others, and after that conferred with two colleagues being the Principal Teacher and Deputy. There was absolutely no primary fact evidence of any involvement by the Confucius Institute either directly or indirectly in that decision.[76]The claimant had given evidence of another Chinese person being given a post as Teacher in 2016 as to which she had some complaints. When asked about that person, Ms McGonigle was aware of him, but had only discussed matters with him on two or three times per year none of which had any relationship to the claimant at all. We accepted her evidence on that, on which there was very little cross examination (entirely properly).[77]Even if we had considered that the claimant had established a prima facie case, contrary to our finding, we would have held that the respondent had discharged the onus that would then have fallen to it. We accepted the respondent’s evidence as to the reasons for their decisions not to appoint the claimant to the two posts, or to offer the claimant an interview for the latter post. We considered that those reasons were as set out above, and that the respondent had discharged the onus, in such an event, of proving that race or belief played no part whatsoever in the decisions taken.[78]We considered therefore that an hypothetical comparator in the same circumstances as the claimant in general terms, but not sharing her protected characteristics or either of them, would have been treated in precisely the same way as she was for each of the two roles (although the claimant had not relied on that it was we considered appropriate to do so given all the circumstances).[79]We concluded unanimously as a result that the claimant had not succeeded with the claim of direct discrimination under section 13 of the Equality Act 2010. If any claim succeeds, to what remedy is the claimant entitled?[80]This issue does not now arise.
Conclusion
[81]The Tribunal must therefore dismiss the Claim.