Mr A Omeni v University of St Andrews: 8000497/2024

EMPLOYMENT TRIBUNALS (SCOTLAND)

Case No 8000497/2024

Venue Dundee

Hearing 11, 12, 13, 14, 15 & 18 November 2024 Deliberations in Chambers on 11 December 2024

Between

Mr A OmeniClaimant

University of St AndrewsRespondent

Before

Employment Judge McCluskey

Ms M Armstrong (instructed by Solicitor) for respondent

Date 13 January 2025

JUDGMENT

[1]The complaint of unfair constructive dismissal is not well founded and is dismissed.

[2]The complaints of direct race discrimination are not well founded and are dismissed.

[3]The complaints of harassment related to race are not well founded and are dismissed.

[4]The complaint of discriminatory constructive dismissal is not well founded and is dismissed.

REASONS

[1]The claimant is making the following complaints: ordinary unfair constructive dismissal, direct race discrimination - section 13 Equality Act 2010 (EqA); harassment related to race - section 26 EqA and discriminatory constructive dismissal – section 39 EqA.

[2]The acts and omissions relied upon in asserting a repudiatory breach of the duty of trust and confidence were set out by the claimant in a document sent to the respondent and the Tribunal on 24 June 2024, in response to the call in paragraph 35 of the respondent’s grounds of resistance submitted with their ET3 response from. These acts and omissions are set out in the appendix to this judgment.

[3]At the outset of the hearing tribunal member AH Perriam disclosed that he was a graduate of the respondent and had previously been a donor, although he had not made any donations to the respondent for over twenty years. We made parties aware of this and gave parties an opportunity to consider further. We explained that possible options included adjourning to try to find another member to sit on the hearing days already allocated; adjourning and re-listing the hearing for different dates with a different panel; proceeding with the hearing dates already allocated with Mr Larkin and the tribunal judge only; or proceeding with the tribunal judge and both members. After an adjournment to consider, both the claimant and Ms Armstrong provided written confirmation that they wished to proceed with the hearing dates already allocated, with both Mr Perriam and Mr Larkin as panel members.

[4]There was a joint file of productions extending to 421 pages. Parties added some additional documents to the file at the outset of the hearing and during the hearing.

[5]The claimant gave evidence on his own behalf. Dr Timothy Wilson – Senior Lecturer, School of International Relations also gave evidence for the claimant, a witness order having been obtained for his attendance. The following witnesses gave evidence on behalf of the respondent: Dr Mathilde von Bulow – Director of Teaching; Professor Fiona McCallum-Guiney – Deputy Head of School; Professor Philipps O’Brien - Head of School; Ms Laura Henderson - HR Business Partner; and Professor Anthony Lang – former Head of School. Findings in fact

[6]We made the following essential findings in fact, necessary to determine the claim.

[7]The claimant was appointed as a Lecturer in the School of International Relations / Centre for the Study of Terrorism and Political Violence (CSTPV) on 11 September 2020. His employment with the respondent ended on 17 June 2024.

[8]In around February 2023 the CSTPV was moved into the School of International Relations (school). The Head of School assumed line management responsibility for all staff who had previously been in the CSTPV, including the claimant.

[9]Around the same time, the School’s Workload Group reviewed the teaching practices and workload across the school, which now included the CSTPV. The aim was to ensure a more even and transparent distribution of work amongst the academic staff in the school.

[10]In January 2023 Dr Von Bulow took over as the Director of Teaching (DoT) for the school. The DoT role is an administrative role and is undertaken alongside an individual’s academic role. She sent an email to all staff in the school to notify them that she had taken over as DoT from Professor Sanghera.

[11]In February 2023 the line management responsibility for the claimant moved from Dr Timothy Wilson (TW) to Professor O’Brien, Head of School (HoS).

[12]On 1 February 2023, the HoS did not describe the claimant’s teaching, in a meeting between them about the claimant’s promotion application, as “average”. In this same meeting the HoS did not say or suggest that white colleagues, who lacked the claimant's teaching accolades, were just as good as the claimant.

[13]On 6 February 2023 the HoS emailed the claimant. He wrote “I am writing to see if you were interested in a leadership opportunity in the school”. The HoS explained that the current Director of Impact and Innovation (DoII) was to be out of the school for around 60% of her time. He said the school would benefit from having an Assistant DoII to work with the DoII. He said he thought the claimant would be great in the role. The claimant responded the same day and said he was happy to take on the role.

[14]On 28 March 2023 the DoT emailed the claimant and asked him if he would teach module IR3077 in semester 2 of academic year 2023/2024. The claimant was to be on research leave in semester 1 of academic year 2023/2024. The claimant agreed to teach module IR3077. The claimant said he tended to develop his teaching processes and materials from scratch and would do so for this module.

[15]On 13 March 2023 the Doll sent an email to all staff in the school. In her email she said that the claimant had agreed to take up a role of Deputy Doll to assist her.

[16]On 20 March 2023 the HoS emailed the claimant. He asked the claimant to step up from Deputy DoII to the role of DoII for the rest of the semester due to other work commitments of the incumbent DoII. The HoS said that he could help the claimant with the work required. The HoS said there would be a new incumbent starting as DoII in semester 1 of academic year 2023/2024. He asked if the claimant would be willing to resume the Deputy DoII role then. The claimant replied and agreed to do so.

[17]On 4 April 2023 the claimant emailed the HoS. He said “If it is not too much trouble, could you please notify the School regarding my role as DoII”. On 12 April 2023 the HoS replied and said “Just say Kristen [the DoII] has stepped down and you have taken the post for the rest of the term”. The end of term ended around end May 2023.

[18]The HoS did not send school wide emails when an academic member of staff took on an administrative role in the school. Sometimes the outgoing role holder would send an email saying who would be taking over and sometimes the new role holder would send an email themselves. It was an individual approach and not everyone sent an email at all. For example, the DoT had sent a school wide email herself when she had taken over the role of DoT.

[19]On 17 April 2023 TW sent an email to all staff in the school to say that the claimant had received an Outstanding Teacher award from the St Andrews Student Association.

[20]In July 2023 the claimant was promoted to Senior Lecturer. On 4 July 2023 the HoS sent an email to the claimant to congratulate him on his promotion.

[21]On 20 December 2023 Professor Fiona McCallum Guiney, Deputy Head of School (DHoS) wrote the claimant in her capacity as Workload Group Chair (page 314). She said that as the claimant was taking on the DoII role in semester 2 of academic year 2023/2024 he would be relieved from additional administrative duties for that semester. She said that new modules are given additional credit in the workload system, and this would be the case for module IR3077. Credit is given in the form of a points system. Credit points are awarded after the module has been taught. For IR3077, credit points would have been awarded to the claimant after the end of academic year 2023/2024. The claimant was not employed by the respondent after the end of this academic year to receive the credit points.

[22]On 12 February 2024 Professor Sanghera, in his capacity as Director of Research, sent an email to all staff in the school, announcing that two colleagues in the school had been awarded the Royal Society of Edinburgh’s Personal Research Fellowship.

[23]On 16 February 2024 the DoT emailed the claimant about his teaching for the academic year 20245/2025 (page 330). She was contacting all members of academic staff about their teaching requirements around this time. The school had to finalise its teaching arrangements for the next academic year by the end of February 2024. This was the responsibility of the DoT. The end of February deadline is the same each year. The deadline is to ensure that the teaching modules on offer can be published in the prospectus for students for the next academic year. In her email the DoT set out the claimant’s proposed teaching requirements, across both semesters.

[24]The school’s workload model had been developed by the Workload Group in the school. The Workload Group comprised a number of staff from across the school. It was chaired by the DHoS. The aim of the workload model was to try to ensure an even workload and greater transparency of workload commitments, for academic staff across the school.

[25]The claimant did not respond to the email of 16 February 2024 from the DoT. On 26 February 2024 she sent him a reminder by email. She said “I need to submit our teaching programme to the University by the end of next week. I kindly ask you to confirm that you are happy for IR3043 to run in Semester 1 and IR3077 to run in Semester 2 as proposed below. We can sort out the subhonours teaching at a later date” (p358).

[26]On 26 February 2024 the claimant sent a reply to the DoT email of the same date. He said “You are explicitly asking me to confirm I am happy in a manner that vitiates the possibility that I am not. I refuse to do so and would prefer my teaching arrangements to remain precisely as they are – if my being “happy”, as you suggest below, is either meaningful or is meant to be the supposed outcome of this exchange. I would typically have raised this with my current line manager, the HoS. However, since you sent your original email, I have struggled to do so insofar as you both are married. As the conflict makes me uncomfortable, I have instead Cc’d my former line manager as I would like someone else to be privy to these exchanges, regardless of where they lead”. The claimant cc’d his former line manager TW.

[27]On 27 February 2024 the DoT sent a reply to the claimant. She said “I’m sorry to hear you are unhappy with my communication and proposals. As you are unwilling to engage with me or explain your reasons, I have escalated this now to DHoS since you don’t feel it appropriate to escalate to HoS. Happy for Tim to be involved. I can likewise take this to workload group. To explain further – and all of this has been worked out by workload group and approved by management committee: Unless you have a buyout through a grant that you have not disclosed to us, or you are stepping into an admin role next year that explicitly comes with teaching relief (which I’ve also not been made aware of), then I’m afraid you will be expected to fulfil your teaching expectations as spelled out in the School’s new workload report (attached). You indicated in your intentions survey for AY24/25 that you wish to do no teaching in Semester 1 and then two modules – IR3043 and IR3077 (capped) in Semester 2, replicating exactly what you’re doing this year. Unfortunately that will not work next year. This year your teaching expectations were reduced because of research leave in Semester 1. Next year they will be back to ‘normal’. So the expectation remains that of 2 full Honours modules and 1 PGT module or equivalents, and the expectation is also that we teach across the full year to meet School need”. The DoT cc’d TW and the DHoS.

[28]The contents of the DoT’s email accurately set out what the workload group had decided by way of teaching requirements for academic year 2024/2025. The requirement was for all academic staff to teach across both semesters unless the staff member had a buyout from teaching through a grant or had an admin role which explicitly came with teaching relief. The claimant did not have either of these for academic year 2024/2025. The aims of the requirement to teach across both semesters was to ensure a more even spread of modules available to students across both semesters and to ensure a more even spread of students in those modules. If there were fewer modules in one semester the number of students in each module would be higher, which would result in a higher marking load. If a staff member had a buyout from teaching through a grant, the respondent could recruit a temporary teaching replacement, using the grant money to cover salary costs for the replacement.

[29]The claimant had not taught in semester 1 of the academic year 2023/2024 as he was on research leave. The claimant had not taught in semester 1 of academic year 2022/2023 due to family leave and holiday leave. The claimant had not taught in semester 1 of academic year 2021/2022, his first full year with the respondent, due to an arrangement for that year with his then line manager TW. These were each specific arrangements for the particular academic year. There was no agreement that the claimant would not be required to carrying out teaching duties in semester 1 of any academic year.

[30]In response to a query about teaching for academic year 2021/2022 the claimant had replied to the then Director of Teaching, Dr Adham Saouli on 8 February 2021 and said “I will be teaching IR3043 and IR5904 for second semester, next year. I am still waiting to be advised re: my teaching for the first semester” (page 214).

[31]On 27 February 2024 the claimant sent a reply to the DoT email. He cc’d TW and the DHoS. The claimant said “Respectfully, you have not escalated anything. An escalation, intuitively, takes a matter up a hierarchy, not down. Moreover, (and I again say this respectfully) Fiona [DHoS] is not a line manager. So, if this is an escalation, as you call it, then it has to be someone above the HoS, please”. He ended the email by saying “Finally, you seem to know more about whether or not I will be DoII next semester. I expected to be Doll, and I wasn’t aware I did such a poor job that I would stop doing this role. But thank you for the inside information”.

[32]On 27 February 2024 the DHoS replied to the claimant’s email of the same date, to the DoT. In advance of sending the email she told the DoT that she would respond. The DoT had told the claimant that she had escalated the matter to the DHoS. The DHoS said “I am responding in my capacity as Deputy HoS on the matters raised in the below email correspondence. As DHoS, I take on all HoS duties when the HoS is out of office as is the case currently”. The DHoS wrote “The request from DoT to confirm your teaching for AY2024-25 is reasonable. As per the Workload Model Report approved in July 2023 and presented to the School at the start of semester 1, all ERF staff are expected to do the following:...”. The DHoS set out the teaching requirements of the Workload Model Report, which included teaching across both semesters, as the HoS had outlined. She went on to set out the claimant’s admin role as a DoII for academic year 2024/2025.

[33]The DHoS ended her email by saying “Finally, I want to note that I did not appreciate the tone of your emails to the School’s DoT. I encourage you to reflect upon your correspondence and whether it was apt from a senior member of the school to a colleague. The School is strongly committed to promoting a collegial and respectful environment and all colleagues expect to be treated in this way. I am happy to discuss the above further in a meeting if you so wish. However, I do consider the matter of your teaching and admin allocations for AY2024-25 closed”.

[34]On 27 February 2024 the claimant replied to the email from the DHoS of the same date. The claimant wrote as follows: “I have cc’d Tim again as I need someone I know to be part of these conversations. Yes, Tim is no longer my line manager (with my deepest regret), but neither are you. I also find you calling out my tone problematic:(a) because I have merely stated that there was a conflict of interest and I was not given the requisite support on a matter like this, and

(b) because you end the email with “I do consider the matter closed”. So I will also note that I do not appreciate your tone either. Matter of fact I also ask you to reflect on your own tone and correspondence to me. I am saying that the conflict of interest bothers me, and that I wanted line managerial support – and that is now an issue why? I have had no line managerial support at all through out this whole process, and that bothers me – a lot. You cannot be happy to discuss a matter further that you have already considered closed. Do you not see the issue with your response? And this is precisely the reason why I need this escalated – because the tone, view and attitude taken here is precisely that taken by the DoT, who is married to the HoS, which is that: you do exactly what you are told and you have no say in the matter. However, I do have a say in the matter – I see no justification for why I need to teach in S1 if all my teaching obligations can be met in S2. It has been the same for three years, is changed and there is no substantive justification short of – “because I said so”. Moreover, I was first told I am not the DoII for S1, and now you are saying that I am. I am either DoII or I am not. Which is it? Regardless of whether it qualifies for teaching relief as you note. What you point out as inaccuracies where simply points of fact that I noted. I am teaching those modules I noted. Nothing inaccurate about that – whether or not they are counted is for the DoT to clarify, which is what I wanted. You note that “any modules new to an individual are given extra credit when first taught”. Noted, and how does this apply to me insofar as I am teaching a new module right now? You offer to further discuss this matter – I am not minded to do so with you given your own tone, the finality of the message, the fact that you are not my line manager and fact that I am not convinced you will take, or an interested in taking, a sympathetic ear towards me. My points remain unaddressed and I am not comfortable with your email to me. I do need this escalated above the husband of the DoT, who is my assigned line manager”.

[35]On 28 February 2024 the HoS emailed the claimant (page 336). He said “I can assure you that you are given an absolutely normal workload under the workload model. As a full-time member of staff without research leave, you are expected to teach in both semesters”. He copied and pasted the DHoS explanation about workload from her email of 27 February 2024 including the reference to the claimant’s tone “Finally, I want to note that I did not appreciate the tone of your emails to the School’s DoT. I encourage you to reflect upon your correspondence and whether it was apt from a senior member of the school to a colleague. The School is strongly committed to promoting a collegial and respectful environment and all colleagues expect to be treated in this way” Can you confirm that you will be undertaking the teaching and administrative described. I am happy to discuss this at anytime”.

[36]On 28 February 2024 the claimant spoke to Professor Lang (PL), a former Head of School. The claimant initiated the conversation. The claimant had a good working relationship with PL. PL had previously held the post of Head of School. He still worked in the school. The claimant told PL that he was having some difficulties. PL agreed to speak to the HoS to see if matters could be resolved informally. PL did so. On 29 February 2024 PL emailed the claimant with a summary of what he and the HoS discussed (p331). He wrote: “I caught Phil yesterday at the end of the day, and we had a quick chat about your situation. Here are a few takeaways: 1. Phil is a strong supporter of your work, which he reminded me of when we talked. You may not know this, but he wrote the letter of support for your application for promotion, not Tim Wilson. This is because, though Tim managed your teaching, Phil was actually your line manager when you applied. And, the letter of support plays a strong role in promotion applications. This is all to say that Phil does rate you and work very highly. 2. The rule about teaching across the two semesters is the rule for everyone in the school. One of the issues with CSTPV in the past is that they did not conform to School rules. So, the email from the DoT was simply to get you into the normal pattern of teaching rather than an attempt to radically disrupt your previous approach. 3. Phil (and Mathilde and Fiona) were all surprised by your response to the initial email. They felt that it escalated very quickly and were not quite sure why you had such a strong reaction to the initial email. I know you have explained to me more the reasons, but I think the email you sent back to Mathilde challenged her authority in a way that they did not expect and which was upsetting to Mathilde. 4. Fiona is your line manager when Phil is unavailable. This is how governance in the school works. So, her email to you, though perhaps not phrased in the right way, was from your line manager at the time. The follow up from Phil just reconﬁrmed what she had said. 5. Phil strongly encouraged you to meet with him in person to discuss all this. He assured me that he would not be defending his wife in this conversation but be explaining the rules to you and working with you to support your research and teaching. I hope this helps... Let me know if you want to talk further about all this”.

[37]The claimant did not respond the email of 28 February 2024 from the HoS. On 6 March 2024 the HoS sent a reminder email to the claimant. He asked the claimant to confirm that he can take up the teaching and administrative responsibilities previously outlined. He offered to discuss this with the claimant.

[38]On 6 March 2024 the claimant replied to the email from the HoS of the same date. The claimant said that he had previously raised a conflict of interest which was as yet unaddressed. He said that the workload “arrangement is not one that I can confirm I am happy with, because I am not. The proposed arrangement will diminish my effectiveness, productivity, and virtually every other work trait that defined my time in this organisation. So long as we have that understanding, you can do the needful”.

[39]On 7 March 2024 the HoS replied to the email from the claimant (p 334). He said “While I understand you are unhappy with the arrangement, it is in no way unusual or onerous to ask a staff member to teach during both terms while not on study leave. As such, you will be expected to do the teaching outlined in the proposal. If you have any questions of that, please do get in touch. If you would like to explain to me the conflict of interest, I would be more than happy to discuss that. I would also like to arrange a meeting with you and Laura Henderson of HR to discuss the content of your emails in response to reasonable requests by other members of the school”.

[40]On 7 March 2024 the DHoS made an informal complaint about the email she had received from the claimant on 27 February 2024. She wrote that she wished the matter to be dealt with at school level in line with respondent’s Dignity and Respect at Work policy.

[41]On 12 March 2024 the DoT made an informal complaint about the email she had received from the claimant on 26 February 2024. She wrote: “As I am going to remain Director of Teaching for another 2+ years, I require assurances that going forward I can count on Omeni’s cooperation in sorting out teaching intentions and in any other teaching and learning related matters that I may have to raise with him. I am still, for instance, waiting for him to respond to an email I sent on 26 February in relation to an informal complaint raised by a student. I expect Omeni to respond to me when I contact him, and I expect him to do so in a manner that is courteous, professional and constructive. I feel the only way to gain these assurances is through this informal complaint, to be dealt with at School level in line with the University’s Dignity and Respect at Work Policy”.

[42]On 13 March 2024 the HoS emailed the claimant. He referred to his email to the claimant on 7 March 2024. He wrote: “I note that you have not yet replied to my email last week requesting a meeting. This is now an issue of some importance. The school has received two informal complaints regarding your conduct during last few weeks, in particular regarding how you have conducted yourself in email messages. I therefore would very much like to schedule a meeting between you, myself, Tony and Laura to discuss where things stand and hopefully reach a resolution to the complaints. I've ccd Lynne on this, so she can help schedule the meeting. So, please do let us know when you would be free to meet and one will be scheduled. If you have any questions, please do not hesitate to contact me”. The HoS cc’d PL and LH(HR) to his email.

[43]On 13 March 2024 the claimant replied to the email of the same date from the HoS, cc’ing PL, TW and LH(HR) in his response. He wrote: “I will not be sitting with you to discuss this matter, for eight reasons: 1. The conflict of interest is structural here. Permit me to explain. You are married to the DoT, and so whatever concerns I had with her original emails, I could not bring to you as my line manager. This is why I have been hesitant to respond every time either you or the DoT have emailed me concerning this matter. In every email, I had highlighted the need to get some line managerial support. I don't think – present continuous – this request is unreasonable. You might disagree. These requests were ignored, severally. Just because you refuse to see a conflict of interest here, does not mean there isn't one. As a person's husband, I cannot expect you to give an unbaised workplace view of a matter raised concerning that person. Right on cue, you sent an email response saying you don't appreciate my tone towards your wife. I would not have expected you to see things any other way, which is why I had asked – ab initio – for this to be escalated. 2. This whole set of exchanges began with the DoT encouraging me, multiple times, to confirm that I am "happy". Pardon me, therefore, for assuming amidst all this, that someone somewhere is concerned about my wellbeing, mental health and "happiness" as an employee in this organisation. However, it soon became clear that nothing about this is about me being happy. My mental health, wellbeing and workplace concerns are perfunctory to a culture that rejects questioning authority. Without a recognition of my wellbeing by my line manager – who has a demonstrable conflict of interest – I would need this escalated. And in the meantime, I cannot have a meeting without the requisite line managerial support beforehand. I need to protect my mental health, since this organisation has refused to support me in doing so. 3. I am concerned that my "tone" is now the topic of issue here. Again, permit me to explain. It seems I am expected to take a supplicatory, apologetic tone. Yet, I have always maintained decorum. This is at the heart of my workplace philosophy – my previous line manager, Cc’d, and colleagues across the School, can attest to this. In this instance, however, despite keeping the same neutral, professional tone, I was told (am being told) that my tone isn't acceptable. Conversely, when colleagues have been brusque and even gone as far as to address me as an infant – "I do consider the matter […] closed" – both yourself and they view this as acceptable. Even challenging the use of this tone against me has itself been identified as an issue. Throughout this process, without any line managerial support, I have felt isolated as I navigated a stressful situation, partly due to this double standard. I ask myself: would I have been supported – will I ever be supported – if I spoke to colleagues the same way, such as telling them I consider a matter closed? Why is it then okay for certain colleagues to speak this way to a(ny) staff member? Am I meant to stay silent in the face of such discrimination? 4. My other concerns raised in the various email chains were completely ignored. I developed a module from scratch, in less than a semester. I have tried to make this clear several times that it took a toll on me, which is why I asked for S1 to gain back some time here. 5. You failed to take issue with the email tone of others against me, and instead took an adverse view against me, without demonstrably listening. You simply copied and pasted from those emails that were concerning to me. So, what do I expect to be said about the same views that you have already co-opted as yours? 6. The last several emails suggest that the School culture is not geared around conversations, at least when in comes to certain people, and concerns certain others. This meeting is unlikely to be a conversation, if the diktat approach from the last several exchanges are any indication of the culture I have now witnessed. 7. If this is an informal complaint, then per the guidelines in item 4.1 of the University's grievance policy, those who have an issue with me must have raised it with their line manager – which would be you (in the case of the DHoS) and PL (in the case of the DoT). However, how can I raise this with a line manager married to the same person whose “orders” I have an issue with? In short, why is it okay for others to get line managerial support, but not me? 8. I am concerned that since you became HoS, my achievements seem irrelevant to you. Aside from the promotion meeting – which is a HoS requirement, I had the same with Professor Watson – you have not been minded to acknowledge my contribution to the School. My teaching awards were ignored. My work as DoII is ignored – despite asking you multiple times to at least tell the School I am DoII (to make my role easier), you refused. Why would my line manager refuse to alert the School of my role? Yet, concerning your wife, there have been far more emails from you in two or three weeks than I have received from you in previous periods. Your interest at this time, when matters are now adverse, is, therefore, unreassuring. Upon reflection, I feel there is some bias against me in an environment where I do not exactly blend in, to begin with. I am happy to sit down with HR, so long as I have a representative, whom I am comfortable with, present there. Finally, I would like to make a correction here – something I have had more than once to do due to errors made as colleagues have tried to make subtle accusations against me in these exchanges. In your email below, you write “I note that you have not yet replied to my email last week requesting a meeting”. This explicitly states that you had requested a meeting of me – putting the onus on me and making it seem as though I am a stubborn employee. However, you never requested a meeting, please. In your last correspondence, from 7 March, what you said was that you “would like to arrange a meeting”. That statement puts the onus not on me, but you.”

[44]The claimant’s email of 13 March 2024 was the first time that the claimant had raised his mental health with the respondent. A referral to Occupational Health needed the consent of the claimant. When Occupational Health was discussed with the claimant after his resignation on 15 March 2024 the claimant chose not to meet with Occupational Health.

[45]On 13 March 2024 PL replied to the claimant’s email of the same date. He wrote “Can we have a quick chat on Teams about this? I’m available until 3. This email is going to cause you more problems, and it won’t help your situation. I can explain more if we talk”. The claimant did not contact PL. PL sent another email to the claimant shortly thereafter, on the same date. He wrote “If you don’t want to talk, I understand. I think the key point to tell you is that if you don’t meet with Phil, Laura and me, this will be escalated to an official complaint. This means I would not be involved, and it would be taken over by the university. I don’t think this would go well for you. But, it is up to you. And, I’m available to talk about this if you want “. The claimant did not respond to PL. The claimant did not raise his mental health with PL after the claimant’s email of 13 March 2024 and prior to his resignation on 15 March 2024.

[46]On 14 March 2024 LH(HR) replied to the claimant’s email of the previous day. She had concluded that the claimant’s concerns, raised in his email of the previous day, could not be resolved within the school. She suggested to the claimant that she refer matters to the Master (as the HoS’s line manager) and recommend that she (the Master) ask one of the Assistant Vice Principals to consider the points which the claimant raised.

[47]On 15 March 2024 at 12.29 Professor Sanghera, emailed the claimant. He said he was writing in relation to a Stage 1 appeal submitted to the school by a student, which he had been asked to investigate. He said it was a routine query. He said a student had submitted an appeal on the grounds of “improper conduct of an assessment or examination, or irregular application of academic regulations”. That is one of the grounds upon which appeals by students can be made. Professor Sanghera said the appeal was because the claimant did not return feedback on an essay to the student using the school’s standard feedback sheet, which includes the marking rubric and that the claimant had referred to the student by name in his feedback, which goes against the school’s principle of anonymous marking. Professor Sanghera asked the claimant to provide any explanation for the two points so that he could investigate the appeal.

[48]The claimant replied with his explanation at 15.00 on 15 March 2024. He said he didn’t use the feedback rubric as he wanted to provide more expansive, sentence-by-sentence feedback. He said he referred to students by name “because the student names are right there beside the submissions”. Professor Sanghera acknowledged his reply at 16.17 on the same day. The claimant responded saying that he had been nothing but respectful and professional in dealing with the student. He said “This accusation is quite surprising. I won’t say anymore”.

[49]On Friday 15 March 2024 at 23.53 the claimant sent an email to LH(HR). His email was a reply to the email from LH(HR) the previous day, proposing that she refer his concerns to the Master. The claimant wrote “That won’t be necessary anymore. I have no interest in staying somewhere I am unwanted in an environment I didn’t sign up for. I would like to put in my resignation, effective Monday (18/03/2024). I believe all relevant parties are cc’d here. If there is anything else required of me, kindly let me know”.

[50]On 16 March 2024 LH(HR) emailed the claimant. She arranged to speak with the claimant on Monday 18 March 2024. The claimant met with LH(HR) on 18 March 2024 by Microsoft Teams (page 357). TW was also in attendance, at the request of the claimant. The claimant said he could not see a route forward where the HoS remained his line manager. He did not withdraw his resignation.

[51]On 20 March 2024 Professor Sanghera emailed the claimant. He wrote “Having reviewed all the evidence, I will be upholding the student’s appeal. The reasons for this are as follows: 1. Whilst I recognise the detailed comments that you provided on the student’s essay, the School’s formal feedback and rubric must be used when providing feedback for the essay. The feedback sheet is referred to in both the student and staff handbooks...2. In this case, the school failed to anonymise the essays for your module on MMS”.

[52]Professor Sanghera acknowledged in his email to the claimant on 20 March 2024 that it was a failure of the school, not the claimant, that the essays were not anonymised. The lack of anonymisation was due to a legacy administrative error on the system, for one of the modules the claimant taught. It was not an error across the school. The claimant replied the same day. He wrote “I said below that all of this is now beyond my concern, and I meant it”. This was because the claimant had submitted his resignation.

[53]The claimant worked a period of notice. On 21 March 2024 LH(HR) emailed the claimant. She proposed speaking to Occupational Health to arrange a referral for him, if he wished. She suggested as an alternative that he may wish to contact Able Futures, an organisation which offered free and conﬁdential counselling support. The claimant did not reply to the email.

[54]During the claimant’s notice period he was absent through sickness from 4 April 2024 until 17 June 2024, when his employment ended on expiry of his notice period. On receipt of his fit note on 4 April 2024 the respondent’s OH adviser left a voicemail message for the claimant, to say that he could contact them for support. The claimant did not attend any OH appointment with the respondent. In the period after the claimant had submitted his notice and prior to commencement of his sickness absence on 4 April 2024 he was teaching, including to a class with the student who had raised the appeal. He made no request to be exempt for any teaching duties in that period.

[55]The individuals relied upon by the claimant in his claim form as carrying out teaching duties in one semester only, (in academic year 2023/2024 or 2024/2025 or both) were doing so because they were either on research leave for one semester or had a buy out grant from teaching duties for one semester. This was in accordance with the school’s workload model which permitted reduced teaching duties in those circumstances.

[56]At the end of each semester, a member of the administrative support team in the school sends each academic member of staff a sheet with a record of their teaching and administrative duties completed that semester. The sheet at the end of semester 2 records teaching and administrative duties over that academic year. The cover email asks the academic member of staff to check the sheet and notify any errors. Sometimes errors were made by the administrative support team and the individual academic responded to the email notifying of the errors. The claimant's sheets in the file of productions showed errors had been made by the administrative support staff. For example, a course the claimant had taught and an admin role he had carried out, in a previous semester, had not been recorded. The claimant had received these emails and not raised these errors on the sheets at any time during his employment. Observations on the evidence

[57]This judgment does not seek to address every point upon which the parties have disagreed. It only deals with the points which are relevant to the issues the Tribunal must consider, to decide if the claim succeeds or fails. If we have not mentioned a particular point, it does not mean that we have overlooked it. It is simply because it is not relevant to the issues.

[58]The standard of proof is on balance of probabilities. This means that if we consider that, on the evidence, the occurrence of an event was more likely than not, then we are satisfied that the event in fact occurred. Likewise, if we consider that, on the evidence, an event's occurrence was more likely not to have occurred, then we are satisfied that it did not occur.

[59]There was a dispute in the evidence about whether the HoS had called the claimant’s teaching “average” at a meeting between the two of them on 1 February 2023. The claimant asserted that the HoS had called the claimant’s teaching “average” in this meeting. The HoS said that he had not done so.

[60]We had regard to the documentary evidence before us. On 31 January 2023 TW emailed Professor O’Brien, the Head of School (HoS) about the claimant’s application for promotion to Senior Lecturer. The HoS replied to TW the same day. He said “I’m meeting with omeni tomorrow and will discuss it with him. My view is that the research is extremely strong, and he should get an outstanding in that. However I do think the education side could be problematic as he’s not been here that long (being considered a good teacher is not something in and of itself that is enough to get an excellent in this category, and he must get at least excellent in education/teaching and also his short tenure leaves him with relatively little service to the school/university. So he has some exceptionally strong areas, but might need to put in some more effort in others to assure promotion”. There is nothing in that email where the HoS describes the claimant’s teaching as “average”.

[61]We also had regard to the promotion form which the HoS required to complete for the claimant’s promotion application. In that form the HoS required to provide an assessment against various criteria. For the “teaching and pedagogy” criterion the HoS had assessed the claimant as “good”. He received a mix of “outstanding”, “excellent” and “good” against the various criteria. Later on in the form, in two of the free text sections the HoS wrote “Dr Omeni has only been in the school for a short period of time, becoming permanent last AY (2021-2022). He has been extremely collegial in that time. He has certainly shown a willingness to undertake what he is asked, though at this point has only been asked to undertake a limited amount of administrative and teaching responsibilities”; and “Dr Omeni has been in the school only a short period and this has meant he has not been able to teach a wide range of courses.... His teaching is extremely well received but it is still rather limited”. There is nothing in that form where the Hos describes the claimant’s teaching as “average”.

[62]The claimant relied on his own evidence of a description of his teaching as average. TW’s evidence was that the claimant was upset after this meeting with the HoS. His recollection was that the claimant told him that the HoS had called his teaching average. However, TW was not at the meeting.

[63]The evidence of the HoS was that he could not recall having used the word “average” in the meeting. His evidence was that he did not think that the claimant’s teaching was average. Therefore he would not have said that his teaching was average. That was borne out by what he had written about the claimant where he had said his teaching is “extremely well received”. The HoS said that if he had used the word average, which he could not recall, he must have been referring to the claimant’s teaching load. That would accord with what he had written about the claimant’s teaching load, as opposed to the quality of his teaching, namely that he had only been asked to undertake a limited amount of administrative and teaching responsibilities due to his short tenure.

[64]On balance we accepted the evidence of the HoS. This accorded with the documentary evidence. Accordingly, we were satisfied that the HoS had not called the claimant’s teaching “average”.

[65]The claimant also asserted in the list of issues at appendix 1 that on 1 February 2023 the HoS suggested that white colleagues, who lacked the claimant's teaching accolades, were just as good as the claimant. There was no evidence led that the HoS had said this or suggested this to the claimant in the meeting on 1 February 2023. Accordingly, we were satisfied that this did not happen.

[66]At the outset of the hearing, it appeared that the claimant disputed whether he was required to teach in semester 1. This was identified in the list of issues at appendix 1 which the parties had confirmed was the final list for determination by us. During the hearing the claimant appeared to accept that there was no agreement with the respondent that he did not teach in semester 1. But given what he perceived to be the demands of the work he had done in semester 1 of academic year 2023/2024, he had hoped not to have to teach in semester 1 of academic year 2024/2025. The claimant said during evidence, and in his questions to the respondent’s witnesses by way of cross examination, that his claim was not about teaching in semester 1 each year.

[67]For completeness we found that there was no agreement by the respondent that the claimant did not teach in semester 1 in any academic year. In response to a query about teaching for academic year 2021/2022 the claimant had replied to the then Director of Teaching, Dr Adham Saouli on 8 February 2021 and said “I will be teaching IR3043 and IR5904 for second semester, next year. I am still waiting to be advised re: my teaching for the first semester” (page 214). TW’s evidence was that there was no agreement that the claimant did not teach in semester 1. But previously, before the CSTPV had come entirely under the management of the school, there had been quite a lot of latitude about when staff in the CSTPV carried teaching. We were also satisfied that in previous academic years when the claimant had not taught in semester 1 this had been for a specific reason on each occasion.

[68]The claimant provided further additional specification of his claim in response to Tribunal orders dated 14 August 2024. He asserted that after having raised his mental health in his email of 13 March 2024 he made a “mental health plea again” to PL. There was no evidence led of any conversations between the claimant and PL after the claimant had sent his email on 13 March 2024. There was no evidence of any email from the claimant to PL after he had sent his email on 13 March 2024 and before his resignation on 15 March 2024 where he raised his mental health with PL. We were satisfied that the claimant had not raised his mental health with PL, after the email to which PL was cc’d, on 13 March 2024.

[69]The claimant asserted that certain named individuals in the school were only carrying out teaching duties in one semester in either academic year 2023/2024 or 2024/2025 or both. He asserted that they were not on research leave and did not have a buy out grant and that their arrangements were outside of the school’s workload model. The claimant’s evidence was that he had obtained this information from the respondent’s website. We did not hear evidence from any of the individuals named.

[70]The evidence from the DoT was that each of these individuals were carrying out teaching in one semester only because they were either on research leave for one semester or had a buy out grant from teaching duties for one semester. This was in accordance with the workload model which permitted reduced teaching duties in those circumstances. Those circumstances had applied to the claimant for academic year 2023/2024 (when he had been on a semester of research leave) but did not apply for academic year 2024/2025.

[71]We accepted the evidence of the DoT as being more likely to be the case, namely that the teaching arrangements of these individuals were in accordance with the school’s workload model. We were satisfied that the DoT (as she was carrying out that role) would have an accurate oversight of the teaching arrangements of those in the school. We were satisfied that if there had been widespread deviation from the school’s workload model this is something which would have come to the attention of the school’s Workload Group, chaired by the DHoS and would have been addressed. Relevant law Unfair constructive dismissal

Relevant law

[72]Section 94 Employment Rights Act 1996 (ERA) provides “(1) An employee has the right not to be unfairly dismissed by his employer.”

[73]Section 95 ERA (circumstances in which an employee is dismissed) provides, so far as relevant to this case – “(1)….an employee is dismissed by his employer if…. (c) the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer’s conduct.” This is commonly referred to as constructive dismissal.

[74]It is for the claimant to satisfy the tribunal that he had been constructively dismissed in terms of section 95(1)(c) ERA. Otherwise, his employment is treated as having been terminated because of resignation, which is not treated as a dismissal.

[75]The breach must be a significant one going to the root of the contract of employment or which shows that the employer no longer intends to be bound by one or more essential terms of the contract (Western Excavating (ECC) Ltd v Sharp

[1978] ICR 221

[76]There is implied in every contract the fundamental term of trust and confidence. It is a fundamental breach of contract for an employer to conduct itself in a manner which impinges on the relationship in a way in which, looked at objectively, is likely to destroy or seriously damage the degree of trust and confidence the employee is reasonably entitled to have in his employer (Malik v BCCI [1998] A.C.20). The implied term of trust and confidence imposes an obligation that the employer shall not without reasonable and proper cause, conduct itself in a manner calculated or likely to destroy or seriously damage the relationship of trust and confidence between the employer and the employer.

[77]The breach may consist of a one-off act amounting to a repudiatory breach. Alternatively, there may be a continuing course of conduct extending over a period and culminating in a last straw, which considered together amount to a repudiatory breach. The last straw need not of itself amount to a breach of contract, but it must contribute something to the repudiatory breach. Whilst the last straw must not be entirely innocuous or utterly trivial it does not require of itself to be unreasonable or blameworthy (London Borough of Waltham Forest v Omilaju

[2005] IRLR 35

[78]The test for whether there has been a repudiatory breach is an objective one that does not depend on the subjective intentions of the employer (Leeds Dental Team v Rose

[2014] ICR 94

, EAT).

[79]In Kaur v Leeds Teaching Hospitals NHS Trust

[2018] EWCA Civ 978

the Court of Appeal listed five questions that it should be sufficient to ask in order to determine whether an employee was constructively dismissed(i) What was the most recent act (or omission) on the part of the employer which the employee says caused, or triggered, his or her resignation?

(ii) Has he or she affirmed the contract since that act?

(iii) If not, was that act (or omission) by itself a repudiatory breach of contract?

(iv) If not, was it nevertheless a part (applying the approach explained in Waltham Forest v Omilaju

[2004] EWCA Civ 1493

) of a course of conduct comprising several acts and omissions which, viewed cumulatively, amounted to a repudiatory breach of the implied term of trust and confidence? (If it was, there is no need for any separate consideration of a possible previous affirmation, because the effect of the final act is to revive the right to resign.)

(v) Did the employee resign in response (or partly in response) to that breach? Race discrimination

[80]Section 13 EqA provides: “Direct Discrimination (1) A person (A) discriminates against another (B) if, because of a protected characteristic, (A) treats (B) less favourably than (A) treats or would treat others”. 81. section 26 EqA provides: “(1) A person (A) harasses another (B) if— (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purpose or effect of— (i) violating B's dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B.… (4) In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account— (a) the perception of B; (b) the other circumstances of the case; (c) whether it is reasonable for the conduct to have that effect.”

[82]Section 39 EqA provides: “Employees and applicants … (2) An employer(a) (A) must not discriminate against an employee of A's (B)— (a) as to B's terms of employment;

(b) in the way A affords B access, or by not affording B access, to opportunities for promotion, transfer or training or for receiving any other benefit, facility or service;

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

[83]Section 136(2) EqA provides as follows: “136 Burden of proof (2) 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.”

[84]There is a two-stage process in applying the burden of proof provisions in discrimination cases: 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 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.

[85]A claimant can rely on an actual or hypothetical comparator for the purposes of establishing less favourable treatment. There must be no material difference in the circumstances of the claimant and comparator (section 23 EqA). In deciding how a hypothetical comparator would have been treated, the Tribunal is entitled to have regard to the treatment of real individuals (see, for example, Chief Constable of West Yorkshire Police v Vento

2001 IRLR 124

[86]A difference in treatment and a difference in protected characteristic is not enough to establish that the difference in treatment was caused by the difference in protected characteristic; “something more” is required (Madarassy v Nomura International

[2007] IRLR 246

). The Tribunal needs evidence from which it could draw an inference that race was the reason for the difference in treatment.

[87]It is a well-established principle that Tribunals are entitled to draw an inference of discrimination from the facts of the case. The position is set out by the Court of Appeal in Igen v Wong

[2005] ICR 931

(as approved by the Supreme Court in Hewage v Grampian Health Board

[2012] IRLR 870

). The Igen case was decided before EqA was in force, but the guidance remains authoritative, particularly in light of the Hewage case.

[88]The necessary connection with a protected characteristic for a harassment complaint can arise where the unwanted conduct is related to the protected characteristic but does not take place because of the protected characteristic (para 7.10. the EHRC Employment Code’).

[89]The context in which unwanted conduct takes place for a harassment complaint is an important factor in determining whether it is related to a relevant protected characteristic (General Municipal and Boilermakers Union v Henderson

2015 IRLR 451

[90]The tribunal’s focus in a harassment complaint should be on the conduct itself, rather than the reason or motivation for the conduct. There is no requirement for a mental element equivalent to that in a claim for direct discrimination when considering whether conduct is ‘related to’ a protected characteristic for the purpose of constituting harassment (Carozzi v University of Hertfordshire

2024 EAT 169

[91]In order to decide whether any conduct has either of the proscribed effects under sub-paragraph (1)(b), a tribunal must consider both (by reason of subsection (4)(a)) whether the putative victim perceives themselves to have suffered the effect in question (the subjective question) and (by reason of subsection (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 (Pemberton v Inwood

[2018] ICR 1291

). Time bar

[92]Section 123 (1) EqA provides as follows: “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”. For the purposes of this section (a) conduct extending over a period is to be treated as done at the end of the period. Submissions

[93]The claimant and Ms Armstrong both provided written submissions and made oral submissions in support of those. We carefully considered the submissions of both parties during our deliberations. We have dealt with the points made in submissions, where relevant, when setting out the facts, the law and the application of the law to those facts in reaching our decision. It should not be taken that a submission was not considered because it is not part of the discussion and decision recorded. Discussion and decision Unfair constructive dismissal

[94]We reminded ourselves of the terms of section 95(1)(c) ERA and the legal test for constructive dismissal as set out by Lord Denning in Western Excavating. There had to be a breach of contract which went to the root of the contract. It had to be sufficiently serious to entitle the claimant to resign immediately, regardless of whether he actually did so.

[95]The claimant asserted that there was a breach of the implied duty of trust and confidence because of the occurrence of a number of events, ending in a last straw event on 15 March 2024 when he was told of a student complaint against him by Professor Sanghera. The events relied upon were identified by the claimant during case management of the claim. The appendix sets out the allegations in the manner and order set out by the claimant during the case management process. Those allegations were not in sequential order and did not include dates. For the purposes of our determination of whether there had been a breach of the implied duty of trust and confidence culminating in a last straw event, we considered the allegations made by the claimant in date order, in so far as we were able to do so, culminating in the last straw event as above. The claimant’s evidence at the final hearing was that this was the last straw event relied upon.

[96]We asked ourselves the five questions as directed by the Court of Appeal in Kaur v Leeds Teaching Hospitals NHS Trust

[2018] EWCA Civ 978

to determine whether the claimant was constructively dismissed.

[97]The most recent act or omission on the part of the respondent which the claimant says caused, or triggered, his resignation was on 15 March 2024 when the claimant was told by Professor Sanghera, by email, of a student complaint against him. The claimant resigned on the evening of 15 March 2024. We were satisfied that the claimant had not affirmed the contract since the email from Professor Sanghera.

[98]Next, we asked ourselves whether that act by Professor Sanghera was by itself a repudiatory breach of contract. For the reasons given below in determining this issue, we were satisfied that it was not.

[99]Next, we asked ourselves whether that act by Professor Sanghera was nevertheless a part (applying the approach explained in Waltham Forest v Omilaju

[2004] EWCA Civ 1493

) of a course of conduct comprising several acts and omissions which, viewed cumulatively, amounted to a repudiatory breach of the implied term of trust and confidence. We considered each of the acts and omissions asserted by the claimant, as set out in the appendix. We were satisfied that viewed cumulatively they did not amount to a repudiatory breach of the implied term of trust and confidence. Referring to claimant’s teaching as “average”- issue 13

[100]The claimant asserts that in a meeting on 1 February 2023 the HoS referred to the claimant’s teaching as “average” and suggested that white colleagues, who lacked his demonstrable teaching accolades, were just as good as him.

[101]There was a dispute in the evidence between the claimant and the HoS about whether the HoS had called the claimant’s teaching “average”. For the reasons already given in our observations on the evidence section, we were satisfied that the HoS did not describe the claimant’s teaching as “average” and did not suggest that white colleagues, who lacked his demonstrable teaching accolades, were just as good as him. Accordingly, we were satisfied that these acts did not take place. School-wide email not sent about claimant’s teaching award – issue 6

[102]The claimant asserts that school-wide emails sent in recognition and support of white colleagues with notable achievements were not extended to him. When the claimant won the Distinguished Teacher award from the St Andrews Student Association in March 2023, TW sent a school wide email about the award. The claimant asserts that the HoS did not respond to that email, even as a courtesy, to support the claimant.

[103]There was no evidence in the file of productions about the HoS sending school wide emails to staff about staff awards. The evidence of the HoS, which we accepted, was that he did not send such emails. The claimant relied upon an email which the Director of Research, not the HoS, had sent to all staff the following year, on 12 February 2024, announcing that two colleagues in the school had been awarded the Royal Society of Edinburgh’s Personal Research Fellowship. There was no evidence of any follow up by the HoS to that email from the Director of Research.

[104]In both the claimant’s case and that of the two other colleagues, a school wide email had been sent by someone other than the HoS, notifying staff of their achievements. The HoS had not been involved on either occasion. We were satisfied that there was no lack of recognition or support for the claimant by the HoS or that the HoS recognised and supported white colleagues but not the claimant. There was no obligation for the HoS to respond to the email from TW, and he had not done so for other achievements by other staff. Failure to support claimant as DoII - issue 8

[105]The claimant asserts there was a refusal to communicate to the rest of the school that he was now DoII. He asserts that even though that lack of communication undermined his role, and even though a simple notification email to the whole school would have greatly empowered him, this support was never offered. The claimant took up the role of Deputy DoII in around February 2023. On 20 March 2023 the HoS asked the claimant to step up to the role of DoII until the end of the second semester. The claimant agreed. On 4 April 2023 the claimant emailed the HoS and asked him to notify the staff in the school about the claimant’s role as DoII. On 12 April 2023 the HoS replied to the claimant and said “Just say Kristen [DoII] has stepped down and you have taken the post for the rest of the term”.

[106]There was no evidence in the file of productions about the HoS sending school wide emails to staff to notify them about individuals carrying out administrative roles in the school. The evidence of the HoS, which we accepted, was that he never did so. The evidence of the DoT and the DHoS, which we accepted, was that sometimes the outgoing role holder would send an email saying who would be taking over and sometimes the new role holder would send an email themselves. It was an individual approach and not everyone sent an email at all. We were taken to an email in the file where the DoT had sent a school wide email herself when she had taken over the role of DoT.

[107]We were satisfied that the HoS did not fail to support the claimant when he did not send a school wide email to say that the claimant had taken over the Doll role until the end of term. We were satisfied that the HoS did not undermine the claimant’s DoII role. We were satisfied that the HoS had been supportive of the claimant in the DoII role, offering to help the claimant with the work required. We were satisfied that the claimant was supported by the HoS to communicate his Doll role to the staff himself, and this was in line with what others had done in the school. Repeated failure to recognise creation of IR3077 – issue 2

[108]The claimant asserts there was a repeated failure to recognise his creation of IR3077, despite numerous attempts to raise this with DoT and her husband, the HoS. And despite an explicit recognition, by the DHoS, that IR3077 was indeed a new module and that the requisite credit will be applied.

[109]The claimant’s evidence was that he had to create module IR3077 from scratch. On 20 December 2023 the DHoS emailed the claimant and confirmed to him that new modules are given additional credit in the workload model, and this would be the case for module IR3077. We accepted the respondent’s witnesses' evidence that credit is given in the form of a points system. Credit points are awarded after the module has been taught. In his evidence the claimant did not dispute that credit points, including additional credit points, are given through the workload model after the module has been taught. The claimant was teaching module IR3077 in semester 2 of academic year 2023/2024. The credit points for IR3077 would have been awarded to the claimant after the end of academic year 2023/2024. The claimant was not employed by the respondent after the end of academic year 2023/2024. Thus, he did not receive the credit points.

[110]The claimant’s evidence was that by credit for creating IR3077 he also meant an acknowledgement of the work he had put into creating the IR3077 module, in addition to the credit point system. By credit he meant that his request to teach only in semester 2 of academic year 2024/2025 should be granted. We were satisfied that the respondent had in place a system for acknowledging and crediting the creation of a new module. That was through the workload model, which awarded additional credits for the creation of a new module. This had been explained to the claimant by the DHoS on 20 December 2023 when she told the claimant that he would receive additional credit in the workload model for the creation of IR3077. He was due to receive these additional credit points after the module had been taught, after the end of academic year 2023/2024. The workload model and his requirement to teach over both terms in accordance with the workload model, was subsequently explained to the claimant by various members of staff by email in communications with him about his teaching requirements in academic year 2024/2025. The respondent’s evidence which we accepted was that there was no doubt that he had put a lot of work into the IR3077 module but that did not exempt him from teaching duties the following semester. Accordingly, we were satisfied that there was no repeated failure to recognise the claimant’s creation of module IR3077. Denying reasonable request to teach across a single semester – issue 5

[111]The claimant asserts that he was told that all colleagues across the school taught over two semesters and denied him his reasonable request to teach across a single semester. He asserts that his teaching arrangements were being changed because the school told him that teaching had to be done across two semesters, not one. He asserts that this was untrue. He asserts several white colleagues taught in-person in just one semester and that he was being denied that workplace practice.

[112]The evidence of all the respondent’s witnesses was that there was a requirement for all academic staff members in the school to teach across both semesters unless the individual had a semester of research leave or a grant buy out from teaching. The claimant did not have either of those arrangements for the first semester of 2024/2025. The claimant did not have a contractual entitlement to teach only in semester two. In evidence he did not say that he had such a contractual entitlement. His evidence was that because he had created module IR3077 from scratch, he should not have to teach in semester one of 2024/2025. We accepted the consistent evidence of the respondent’s witnesses that the requirement for all academic staff to teach across both semesters (unless on research leave or a buy out grant) was applied to all academic staff in the school. We accepted the consistent evidence of the respondent’s witnesses, that this requirement had been put in place by the school’s workload group, and approved by the school’s management committee, to ensure a fairer distribution of workload amongst the academic staff and greater transparency of arrangements. The claimant put to the respondent’s witnesses that in aspects where their evidence was consistent, they were closing ranks on the claimant. We did not accept that to be the case. We were satisfied that the requirement to teach across both semesters and how that came about through the workload group had been explained clearly to the claimant in email correspondence from the DoT, the DHoS, the HoS and PL. There was documentary evidence to support the rationale of the workload group, which had been provided to the claimant in February and March 2024 when he was being asked to teach across both semesters. The claimant’s witness, TW, agreed that whilst in the past within the CSTPV unit, teaching requirements under him were more flexible, the claimant had no contractual entitlement to teach only in semester two. Accordingly, we did not agree that the claimant’s request to teach in semester two only was a reasonable one because he had created module IR3077.

[113]We did not agree with the claimant’s assertion that it was untrue that teaching was required to be done across both semesters. The documentary and oral evidence of the witnesses showed otherwise. We accepted the evidence of the DoT that the other white colleagues relied upon by the claimant as teaching only in one semester in academic year 2023/2024 or academic year 2024/2025, were doing so because they had a semester of research leave or grant buy out. The DoT has oversight of teaching in the school and we were satisfied that she would have accurate information about those teaching arrangements.

[114]We were satisfied that the requirement for the claimant to teach across both semesters in academic year 2024/2025 was a reasonable one and in accordance with the requirements made of all other academic staff in the school. School’s failure to comply with its own workload policy – issue 1

[115]The claimant asserts that the school failed to comply with its own workload policy. The claimant asserts that he was asked by the DoT – and so proceeded – to create a module IR3077 from scratch, during my Research Leave (Semester 1, Academic Year 2023/24. He asserts that he delivered this module for the first time, right after creation in Semester 2. Per the school’s workload policy, he asserts that he expected workload credit for both the creation and delivery of this new module. Furthermore, at the time, he was also DoII – a role with some workload credit. He asserts that despite workload policy breakdown provided in his claim, the school never acknowledged the creation and delivery of this new module and never allocated him the requisite credit in their policy.

[116]Although identified by the claimant as a separate issue, we have already dealt with the issues of creation of the IR3077 module and the way that this module was credited by the respondent in our reasons above. Failure to address the conflict of interest – issue 3

[117]The claimant asserts there was a failure to address the conflict of interest, which he asserts that he highlighted several times. He asserts that he had concerns regarding the DoT’s allocation of teaching and asserts that she repeatedly failed to acknowledge that the school had failed to comply with its own workload policy. He asserts that he would normally take these concerns to the HoS (his line manager). He asserts that in this instance, insofar as the DoT and HoS are married, he was deeply uncomfortable approaching him as he did not expect him to side with the claimant against his wife. He asserts that the DoT never acknowledged the school’s failure to comply with its own workload policy and instead sought to change up his teaching arrangements, even before any teaching credit was allocated for what he had already done.

[118]As we have already found, we are satisfied that the DoT and the respondent more generally did not fail to comply with the school’s workload policy for the claimant. The DoT, the DHoS, the HoS and PL all emailed the claimant and explained the school’s workload policy which had been prepared by the school’s workload group and authorised by their Management Committee. The DoT, the DHoS, the HoS and PL took time to explain to the claimant in their email correspondence how the allocation of teaching and the workload group report worked and to reassure the claimant that this was being applied to him in the same way as everyone else. We are satisfied that the respondent explained to the claimant that there had been no breach of the school’s workload policy for the claimant and the reasons why there had been no breach. We have also dealt already withe the allocation of teaching credit which is done after the teaching is completed. The credit for module IR3077 would only have been allocated at the end of academic year 2023/2024 but the claimant’s employment had ended before then.

[119]The claimant also asserts that there was a failure to address a conflict of interest, which he asserts that he highlighted several times.

[120]The claimant first raised what he believed to be a conflict of interest on 26 February 2024, in his email to the DoT when he said he wanted to teach in semester two only. The DoT responded on 27 February 2024. She said that as the claimant did not feel it was appropriate to escalate to the HoS, she was escalating to the DHoS. The claimant responded on 27 February 2024. He said that the DHoS was not a line manager. He referred to the conflict of interest he had referred to the previous day. On 28 February 2024 the HoS emailed the claimant and sought to reassure him that he was being given a normal workload under the school’s workload model. He offered to speak with the claimant. On 6 March 2024 the claimant replied to the HoS and said that he had raised a conflict of interest which he considered was unaddressed. On 7 March 2024 the HoS emailed the claimant and asked him to explain the conflict of interest and that he would be happy to discuss it. The HoS evidence was that the DoT was simply following the school’s workload policy and he did not understand why the claimant perceived there to be a conflict of interest. On 13 March 2024 the claimant replied. He included LH(HR) in his response. He said “The conflict of interest is structural here. Permit me to explain. You are married to the DoT, and so whatever concerns I had with her original emails, I could not bring to you as my line manager”. On 14 March LH(HR) replied to the claimant. She suggested that she refer matters to the Master who is the line manager for all Heads of School.

[121]In summary, the claimant raised what he perceived to be a conflict of interest on 26 February, 27 February, 6 March and 13 March 2024. During this period, we were satisfied that the DoT, DHoS, HoS and PL were each variously trying to reassure the claimant that the requirement to teach across both semesters was in accordance with the school’s workload policy. The claimant’s email of 13 March 2024 was when the claimant made clear that he was not willing to sit down with the HoS to discuss anything. At that point the decision was taken by LH(HR) to involve the Master.

[122]The claimant’s evidence was that what he wanted to happen was for escalation to the Master. That was precisely what happened on 14 March 2024, the day before the claimant resigned. We are satisfied that there was no failure by the respondent to address any conflict of interest, as the claimant asserts. The school took steps to try to reassure the claimant that they did not consider there to be a conflict of interest. The school took steps to try to meet with the claimant to understand his concerns but he refused to engage with them. When it became clear on 13 March 2024 that the claimant would not engage with the school, it was referred to the Master on 14 March 2024. The claimant did not wait for the Master to respond as he tendered his resignation email the following day. Repeatedly making the claimant seem like an incompetent and difficult employee – issue 7

[123]The claimant asserts that the respondent repeatedly made him seem like an incompetent and difficult employee. As examples he asserted: “(1) blaming me for failing to anonymise student papers, when the issue here was acknowledged to be a school “failure” (2) saying that I refused to respond to meeting requests, when no such requests were sent; (3) suggesting that my “tone” was problematic, whilst failing to address the substance of my reasonable concerns.”

[124]The HoS’s email of 7 March 2024 said “I would also like to arrange a meeting with you and Laura Henderson of HR to discuss the content of your emails in response to reasonable requests by other members of the school”. The HoS’s email of 12 March 2024 said “I note that you have not yet replied to my email last week requesting a meeting. This is now an issue of some importance. The school has received two informal complaints regarding your conduct during last few weeks, in particular regarding how you have conducted yourself in email messages”. Whilst the email of 7 March 2024 from the HoS did not send a meeting request, it was sent in the context of communications about the contents of the claimant’s emails and we are satisfied that it was clear that the HoS was looking for a response, whereas the claimant had sent no response.

[125]The issues about anonymising student papers and the reference to the claimant’s tone in his emails to the DoT are both dealt with elsewhere in the relevant issues. No support from Occupational Health offered – issue 9

[126]The claimant asserts: “Despite HR being copied into the email exchanges between me and the school, where I noted that I was not being supported and my mental health was struggling, no support from Occupational Health (OH) was offered, until after I resigned. This contrasts with white colleagues at the school who had complained about their mental health”.

[127]The only reference the claimant made to his mental health, prior to his resignation, was in his email of 13 March 2024 to the HoS. His email gave eight numbered reasons why he would not meet with the HoS. One of those reasons referred to his mental health. He wrote “Pardon me, therefore, for assuming amidst all this, that someone somewhere is concerned about my wellbeing, mental health and ‘happiness’ as an employee in this organisation.... My mental health, wellbeing and workplace concerns are perfunctory to a culture that rejects questioning authority.... I need to protect my mental health, since this organisation has refused to support me in doing so”. The claimant did not make any other reference to his mental health before he wrote his resignation email two days later on 15 March 2024.

[128]We did not agree with the statement in the claimant’s email to the HoS on 13 March 2024 that the respondent had refused to support him in protecting his mental health. This email was the first time the claimant had referred to his mental health. There was no evidence that the claimant had referred to his mental health to anyone before 13 March 2024.

[129]The claimant in evidence said that when LH(HR) replied to his email on 14 March 2024 she ought to have referred him to OH and she did not do so. The evidence of LH(HR) was that she did not understand the claimant’s email, which was lengthy and referred to eight numbered issues, as him saying he needed an immediate referral to OH. He had not made any reference to OH in his email. A referral to OH needed the consent of the claimant. LH(HR) understood the claimant’s email as saying that an impasse had been reached within the school and she decided that taking matters outside of the school was the best course of action. That is why she had referred to the Master (who is outside of the school) in her email of 14 March 2024.

[130]We were satisfied that the contents of the claimant’s email of 13 March 2024 were wide ranging and that an impasse had been reached between the claimant and the school. Although the claimant had referred to his mental health in his email this was one of many issues which he raised. We were satisfied that a referral to OH required the consent of the claimant. The claimant had said in his email that he would be “happy to sit down with HR” so long as he had a representative present whom he was comfortable with. We were satisfied that having raised his concerns, including the impact on his mental health, on 13 March 2024, the claimant did not wait to see what support HR could offer (including a referral to OH) by sitting down with them, as he himself had suggested at the end of his email on 13 March 2024. Instead, he resigned two days later on 15 March 2024. We also noted that after the claimant had met with HR (post his resignation) the claimant was asked if he wished a referral to OH, but the claimant did not take this up.

[131]The evidence led by the claimant was that another employee in the school, who was white, had experienced mental health difficulties, and had been supported by the respondent. Whilst the claimant named the individual in his evidence there was no evidence led at all of how that individual had been supported or the process or timescales for doing so. That named individual was a witness at the final hearing. No evidence was led from the individual about their mental health or any support they had been given. We were unable to make any findings about how the treatment the claimant received in relation to the involvement of OH was different from this individual, or other white employees of the school more generally. “Tone policing” - issue 10

[132]The claimant asserts: ““Tone policing” me, which is a racist micro-aggression. I have also suffered elsewhere in this country, when I was trying to get answers to much of the issues raised above. This served as an undermining action and a proximate cause of constructive dismissal. The offending language by the DHoS, further reinforced by the HoS, with HR copied in, remains a source of enduring distress”.

[133]For the reasons given below about the complaints of race discrimination, we were satisfied that the DHoT’s use of the word “tone” in an email to the claimant and which was copied and pasted in an email to the claimant by the HoS was not a racist micro-aggression. Not “go well” for claimant email – issue 12

[134]The claimant asserts “I was told that, if I persisted in my attempts to seek unbiased support beyond the school, for the difficult process I was navigating without line managerial support, it would not “go well” for me. The person who sent me this insidious email was a senior professor and the Director of Wellbeing, who incidentally did nothing in support of my own wellbeing”.

[135]We heard no evidence about whether PL was the Director of Wellbeing. The claimant’s evidence, with which PL agreed, was that they had a good working relationship. The claimant approached PL and told him he was having some difficulties. With the agreement of the claimant, PL spoke to the HoS to see if matters could be resolved informally. Having spoken to the claimant and to the HoS, PL emailed the claimant on 29 February 2024 and sought to reassure him that the rule about teaching across the two semesters was the rule for everyone in the school. PL was next involved when the claimant cc’d him into his email to the HoS on 13 March 2023. That email was where the claimant was saying that he was not prepared to speak with anyone in the school. By that point both the DoT and the DHoS had made written complaints about the content of the claimant’s recent emails to them. They had asked that the complaints be resolved within the school in line with the University’s Dignity and Respect at Work Policy. The HoS had asked the claimant on 13 March 2023 to let him know when the claimant would be free to meet to discuss these complaints. In the claimant’s response to the HoS on 13 March 2024 he refused to meet with the HoS and thus was preventing the complaints by the DoT and the DHoS about him from being dealt with by the school. The evidence of PL was that he sent the email because of his good working relationship with the claimant and because the request for the claimant to teach across both semesters was in accordance with the school’s workload group. PL was keen that matters were resolved informally at a school level for the claimant and believed this was the best way that he could support the claimant, after the claimant had reached out to him for informal support. PL’s evidence was that if the complaints of the DoT and the DHoS about the claimant were escalated outside of the school, in his view there could be difficulties for the claimant.

[136]We were satisfied that PL had no involvement in any formal process which went outside of the school. The claimant did not suggest that PL did have any such involvement. PL made it clear in his email that he would have no such involvement outside the school and we accepted that. We were satisfied that the words used by PL “I don’t think this would go well for you”, conveyed that although PL had no involvement in a formal process outside the school, his view was that there may be merit in the complaints against the claimant, whilst the claimant’s own complaint about having to teach across both semesters had little merit. PL made clear in his email that the decision about whether the claimant escalated outside of school was a matter for the claimant. We were satisfied that the comment was intended in a supportive way, given that it was the claimant who had sought out the support of PL to speak informally to the HoS. Refusing to provide unbiased line managerial support – issue 11

[137]The claimant asserts “Refusing to provide me unbiased line managerial support despite several requests for the same. HR was also Cc’d into emails and saw all these requests. I was told that, if I persisted in my attempts to seek unbiased support beyond the school, for the difficult process I was navigating without line managerial support, it would not “go well” for me. The person who sent me this insidious email was a senior professor and the Director of Wellbeing, who incidentally did nothing in support of my own wellbeing”.

[138]We have dealt with this issue already in our decision about issue 12 above. Additionally, there was no evidence led about PL having any involvement with the claimant in a Director of Wellbeing role or that the claimant had sought assistance from PL for his wellbeing. Upholding a student query – issue 4

[139]The claimant asserts “Upholding a student query, partly based on a policy of coursework anonymity that was poorly implemented. Students were under the impression that they were marked anonymously, which is why a student raised a query against me when her paper was marked non-anonymously. Yet the reality, which the school admitted was a “failure” on its part, was that student names were never anonymised for me. In going back to teach a student who just won a decision against me, due to the school’s fault, my mental health struggled immeasurably. Despite the School’s own admission of failure, and decision to change the marking system after the fact, nothing was done to support me.”

[140]Professor Sanghera’s email of 15 March 2024 to the claimant made it clear that he was following a standard investigation procedure in dealing with the stage 1 appeal submitted by the student about the claimant’s marking. Professor Sanghera set out the standard procedure which he needed to follow. Professor Sanghera’s email to the claimant said that it was “a routine query”.

[141]We were satisfied that Professor Sanghera was followinga standard investigation procedure and that it was part of his job to carry out this investigation. We were satisfied that Professor Sanghera was not attributing any blame to the claimant in his emails of 15 March 2024, he was simply at the investigation stage.

[142]The other matters identified by the claimant in this issue relate to events after 15 March 2024 when he had submitted his resignation. They cannot therefore have formed part of the claimant’s decision to resign on 15 March 2024.

[143]In dealing with the assertion made by the claimant post his resignation, for completeness, we were satisfied that Professor Sanghera made it clear in his email to the claimant of 20 March 2024 that it was a failure of the school and not the claimant that the student’s essays were not anonymised. In relation to the student’s other ground of appeal, about the format of the feedback provided to the student by the claimant about their essay, Professor Sanghera found that the ground of appeal was upheld as the school’s formal feedback and rubric should have been used by the claimant. During the claimant’s notice period following his resignation he was offered a referral to OH and signposted to other mental health services external to the respondent. The claimant did not take up the referral to OH. Conclusion – constructive dismissal complaint

[144]We were satisfied that the assertions made by the claimant either did not happen or did not happen in the way asserted by him. The event on 15 March 2024 when Professor Sanghera sent the claimant the email about the student stage 1 appeal was not of itself a repudiatory act. Nor was it part of a course of conduct comprising several acts and omissions which, viewed cumulatively, amounted to a repudiatory breach of the implied term of trust and confidence.

[145]Objectively, we were satisfied from the perspective of a reasonable person in the position of the claimant that these events when considered together did not constitute a course of conduct calculated or likely to destroy or damage the relationship of trust and confidence, without reasonable and proper cause. There was no repudiatory breach and accordingly the claimant did not terminate his contract in circumstances in which he was entitled to terminate it by reason of the respondent’s conduct. The claimant was not therefore constructively dismissed and instead resigned voluntarily.

[146]In the circumstances it is not necessary for us to consider whether the alleged breach was a factor (i.e. played a part) in the claimant’s resignation or whether the claimant affirmed the alleged breach. Direct race discrimination – section 13 EqA

[147]During evidence in chief the claimant clarified the allegations which he asserted were direct race discrimination as follows: School’s failure to comply with its own workload policy – issue 1; Denying reasonable request to teach across a single semester – issue 5; School-wide email not sent about claimant’s teaching award – issue 6; Failure to support claimant as DoII-issue 8; No support from Occupational Health offered – issue 9; Not “go well” for claimant email – issue 12; Referring to claimant’s teaching as “average”- issue 13; and “Tone policing” - issue 10.

[148]Dealing with each of these in turn, firstly we found that the school had not failed to comply with its own workload policy, in that the credit for creating and teaching a module (IR3077 in the claimant’s case) was made at the end of the semester in which the teaching was delivered. All employees including the claimant were credited after the semester in which the teaching was delivered. The claimant’ employment had ended before then. Accordingly, we were satisfied that the evidence was not sufficient for the burden of proof to pass to the respondent.

[149]In relation to credit for the DoII role we found that the this did not happen at the end of the semester due to an administrative staff error. The claimant along with all other staff members were sent their credits at the end of each semester and asked to check and return these with any changes. The claimant did not raise during his employment that his DoII role had not been credited. Accordingly, we were satisfied that the evidence was not sufficient for the burden of proof to pass to the respondent.

[150]Next, we considered the claimant’s request to teach only in semester two. We found that the requirement to teach across both semesters was in accordance with the school’s workload group. The claimant referred to various other academics whom he asserted worked only in one semester for reasons other than research leave or a buy out of teaching. The claimant relied on his own understanding of the arrangements of his colleagues. His evidence was that he had looked at the respondent’s website but conceded that this did not show the detail of the individuals’ teaching requirements. Accordingly, we were satisfied that the evidence was not sufficient for the burden of proof to pass to the respondent.

[151]Next, we considered that a school-wide email had not been sent by the HoS about claimant’s teaching award from the St Andrews Student Association. This assertion was directed at the HoS, it being asserted that the reason he had not sent an email was because of the claimant’s race. There was no evidence of the HoS sending school wide emails about the achievements of any members of staff. The claimant referred to an email from the Director of Research sent to the school about research achievements of two colleagues who were white. In the same vein, TW had sent a school wide email about the claimant’s teaching award. Accordingly, we were satisfied that the evidence was not sufficient for the burden of proof to pass to the respondent.

[152]Next, we considered the assertion that the HoS had failed to support the claimant in his role as DoII. We found that this was not the case. We found that the HoS had supported the claimant by offering to help him with the work. We did not find that the claimant was not supported by the HoS as the HoS did not send a school wide email to say that the claimant had taken on the DoII role until the end of the semester. Accordingly, we were satisfied that the evidence was not sufficient for the burden of proof to pass to the respondent.

[153]Next, we considered the assertion that the claimant had not been offered support from OH. We found that this was not the case. We found that the claimant had not raised any issues about his mental health until his email of 13 March 2024. We were satisfied that the claimant in that email was asking for matters to be escalated higher than the HoS, thus outside of the school. We were satisfied that the claimant was not asking for a referral to OH. We were satisfied that the LH(HR) raised with the claimant after 15 March 2024 whether he wished a referral to OH. There was no evidence from the claimant to support the assertion that the claimant had been treated differently by these actions from LH(HR) than white colleagues. Accordingly, we were satisfied that the evidence was not sufficient for the burden of proof to pass to the respondent.

[154]Next, we considered the email from PL where he said that if matters were escalated to an official complaint about the claimant, he did not think it would “go well” for the claimant. There was no evidence to suggest that PL said this because of the claimant’s race. The evidence of the claimant was that he had a good working relationship with PL and had contacted him a couple of weeks previously and agreed that he should try to speak to the HoS on the claimant’s behalf. Accordingly, we were satisfied that the evidence was not sufficient for the burden of proof to pass to the respondent.

[155]Next, we considered the assertion that the HoS had referred to the claimant’s teaching as “average”. We were satisfied that the HoS had not said this. Accordingly, we were satisfied that the evidence was not sufficient for the burden of proof to pass to the respondent.

[156]Finally, we considered the claimant’s assertion that he was subjected to “tone policing” which he asserts is direct race discrimination.

[157]We considered whether the facts were such that a racial motivation, conscious or unconscious, could be inferred such that the burden of proof shifted to the respondent to show otherwise. We were satisfied that no racial motivation conscious or unconscious could be inferred. The DHoS had used the word “tone” in response to language of the claimant, which was objectively unprofessional, in response to professional requests by the claimant, in accordance with her remit as DoT. Accordingly, we were satisfied that the evidence was not sufficient for the burden of proof to pass to the respondent.

[158]If we are wrong on that and the burden of proof had shifted to the respondent, the evidence of the DHoS, which we accepted, was that her use of the word “tone” was not motivated by the claimant’s race. Her evidence which we accepted was that she had thought carefully about using the word tone. She felt that the DoT was making a reasonable request to the claimant to work across both semesters. She knew that this was being asked of all academic staff in the school. She felt that the claimant’s response by refusing to work in in both semesters was unreasonable and that the way he was communicating this to the DoT (by what he had written) was unacceptable. She had thought about using the word conduct to describe her concerns about the claimant’s emails but had decided against this and chose tone instead as she thought it sounded serious (which it was) but less serious than conduct. We were satisfied that, even if the burden of proof had shifted, the use of the word tone was not because of the claimant’s race. Conclusion – direct race discrimination

[159]Accordingly, the complaints of direct race discrimination are not well founded. Harassment related to race – section 26 EqA

[160]The claimant asserted that he was subjected to “Tone policing” which was harassment related to his race - issue 10.

[161]The wording of the email from the DHoS to the claimant on 27 February 2024 which the claimant asserts is harassment related to race is “Finally, I want to note that I did not appreciate the tone of your emails to the School’s DoT. I encourage you to reflect upon your correspondence and whether it was apt from a senior member of the school to a colleague. The school is strongly committed to promoting a collegial and respectful environment and all colleagues expect to be treated in this way. I am happy to discuss the above further in a meeting if you so wish”.

[162]The claimant’s evidence was that use of the word “tone” was unwanted conduct due to the claimant’s association with the word “tone” in a historical context towards black people. We accepted the claimant’s evidence that the conduct was unwanted.

[163]Next, we asked ourselves whether the conduct of using the word “tone” related to the claimant’s protected characteristic of race. We reminded ourselves that unlike the test for direct race discrimination, the motivation of the DHoS (and the HoS who copied and pasted the same wording) was not relevant. We considered the context in which the unwanted conduct of the word “tone” had been used. The word “tone” had been used by the DHoS about emails which the claimant had sent to the DoT.

[164]The claimant’s email of 26 February 2024 to the DoT included the following “You are explicitly asking me to confirm I am happy in a manner that vitiates the possibility that I am not. I refuse to do so and would prefer my teaching arrangements to remain precisely as they are – if my being “happy”, as you suggest below, is either meaningful or is meant to be the supposed outcome of this exchange”.

[165]The claimant’s email to the DoT on 27 February 2024 included the following “Finally, you seem to know more about whether or not I will be DoII next semester. I expected to be Doll, and I wasn’t aware I did such a poor job that I would stop doing this role. But thank you for the inside information”.

[166]The claimant’s emails were in response to an email request from the DoT to the claimant to confirm his teaching for academic year 2024/2025. The DoT was doing so in accordance with the school’s agreed workload model. She was doing so in accordance with her role as DoT. She had sent a reminder email to the claimant to respond to her earlier email as the teaching requirements for the forthcoming academic year needed to be finalised for all staff by the end of the following week and the claimant had not replied. The email correspondence between the claimant and the DoT was in a professional context between two senior academic members of staff. In context, objectively the DoT’s emails to the claimant were polite and professional. In context, objectively the claimant’s email responses to the DoT were not polite or professional. The claimant’s evidence was that he was emailing the DoT “politely and with decorum” and “keeping a neutral, professional tone”. Looking at the context of why the DoT was emailing the claimant and the words she had used it did not appear to us, objectively, that the claimant was communicating with the DoT politely or with decorum or that he was keeping a neutral, professional tone. Conclusion – harassment related to race

[167]Having considered carefully the context in which the unwanted conduct (using the word tone) took place, we were satisfied that the use of the word “tone” was not related to the protected characteristic of race for the purpose of constituting harassment.

[168]Having determined that the unwanted conduct did not relate to the protected characteristic of race, there is no requirement for us to conduct had the purpose or effect of violating the claimant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the claimant. Discriminatory constructive dismissal

[169]The claimant brings a complaint of discriminatory constructive dismissal.

[170]A last straw constructive dismissal may amount to unlawful discrimination if some of the allegations relied on, though not necessarily the last straw itself, are acts of discrimination. As already set out we are satisfied that none of the allegations relied upon are acts of race discrimination (whether direct discrimination or harassment). In any event, it is not possible to bring a complaint of constructive dismissal by harassment under the EqA (McLeary v One Housing Group

UKEAT/0124/18/LA

[171]Accordingly, the complaint of discriminatory constructive dismissal does not succeed and is dismissed. Time bar

[172]Having concluded that the claimant’s discrimination complaints do not succeed, it is not necessary for us to consider the potential time bar of some of the complaints.

Conclusion

[173]Having concluded that the claimant’s complaints do not succeed it is not necessary for us to consider remedy.