Perth home economics teacher who resigned after being racially abused by pupils loses discrimination claim in Employment Tribunal

The teacher, who described herself as of Scottish nationality and of Pakistani ethnicity, was employed in Bertha Park high school in Perth between February 2020 and November 2021. She argued that the way her grievances had been handled was less favourable than others who had requested a transfer to another school as a result of difficulties in their current workplace.

The case was heard by Employment Judge Campbell along with Tribunal members A Perriam and R A’Brook. Ms L Campbell, solicitor, appeared for the claimant and Ms M McLaren, solicitor, for the respondent.

Breakdown in employment relationship

Following the return of pupils to classroom learning in August 2020, the claimant returned to school for at least part of her working time as a principal teacher of home economics. On one occasion in the autumn of 2020, a pupil addressed her using the word “Wagwan”, a West Indian patois form of greeting with which the claimant, who spoke with a Scottish accent, had no ethnic connection. At the time, she was the only non-white member of staff in the school.

Following the return of pupils and staff to the school in April 2021, there were further similar incidents where pupils would speak with an Indian accent around her. On these occasions the claimant alerted a guidance teacher, who spoke to the pupils concerned and sometimes their parents. These incidents continued until May 2021. Bertha Park was a newly established school that did not yet have the capacity to provide internal exclusion for these pupils and took a “restorative” approach to pupil behaviour. However, community policing officers attended the school in May 2021 to speak to the pupils involved.

Following a grievance meeting in late May 2021 and a period of sickness absence, the claimant had a virtual absence management meeting with a deputy head of the school. She indicated that she was uncomfortable returning to Bertha Park and was offered a phased return to work in another school at a lower pay band, as there were no relevant home economics vacancies within the respondent’s area at the time. She submitted her resignation letter on 11 November 2021, citing an irretrievable breakdown in the employment relationship due to the way her concerns had been handled.

It was the claimant’s case that she had been discriminated against, as she had been offered a demotion to return to work from illness and she had not been given adequate support in relation to the incidents of pupil behaviour. She was aware of staff at principal teacher level working within the respondent’s local authority area who had requested a transfer to another school, sometimes involving a switch in department or discipline, and had that request granted.

Onus on the claimant

In its decision, the Tribunal observed: “It [was] noted that the comparator suggested by the claimant in relation to these complaints was a real comparator, namely one or more teachers who the claimant said from her own experience had been allowed to switch schools with other teachers. The issue the tribunal had was that there was a lack of evidence necessary to conclude that any suggested comparator was in circumstances involving ‘no material difference’ from those of the claimant, as section 23 of the Equality Act 2010 requires.”

It continued: “For any comparator the claimant referred to, it was not clear for example what circumstances caused them to seek a transfer to a new school within the respondent’s area, to what extent if any the respondent itself might be held responsible for those circumstances, and therefore be said to be under any duty, moral or more formal, to facilitate a move, or how willing the other party involved in the transfer was. It was not known whether any such person had different or similar race or ethnicity to the claimant. As the onus falls on the claimant in this regard, [her] complaints could not succeed.”

Addressing whether the claimant had been directly discriminated against by the school’s response to the use of racist language, the Tribunal said: “The particular terms of the Act are such that the claimant has to establish primary facts which at least potentially would allow for a conclusion that she had been less favourably treated than a suitable comparator because of race. The tribunal considered that there were no such primary facts which would achieve that end. In any event, it found the respondent’s evidence sufficient to allow it to reach the conclusion that a comparator would have been treated in the same way as the claimant.”

It concluded: “The tribunal recognises that the claimant sustained racially motivated verbal abuse from pupils on a number of occasions in April and May 2021, and that this was distressing to her to the point that it impacted on her health. However, according to the particular provisions of the Equality Act 2010, for the reasons above the respondent did not treat her less favourably than it treated, or would have treated, a relevant comparator by reason of race.”

The claim was therefore dismissed.