Race and religious discrimination

In the case of EBD v Oxfordshire County Council, the employment tribunal (ET) considered whether a school’s failure to provide a reference amounted to discrimination on the grounds of race and religion.

The claimant was employed by the school as a lunch-time supervisory assistant. On 27 March 2018, the claimant intervened in an altercation between some children and in doing so she held two children by the wrist. The children swore at the claimant. The claimant reported the incident to the headteacher. The headteacher also received a call from one of the parents, complaining that her child had been hurt by the claimant during the incident.

Informal disciplinary

A meeting was arranged between the headteacher and the claimant to discuss the incident. The headteacher decided to deal with the matter informally, advising the claimant that any further incidents should be dealt with by a more senior member of staff and training on restraint would be arranged.

There was a dispute between the parties about the nature of the meeting, the claimant believing the meeting had been prompted by her complaint about the children’s behaviour. The headteacher’s view was the discussion was an informal verbal warning and part of the disciplinary procedure, although the policy had not been fully followed because the discussion had not been confirmed or actions agreed in writing.

Reference request

In December 2018, the claimant applied for a teaching assistant role at another school and attended an interview. On 10 December, the headteacher was asked to provide a reference for the claimant, although no time limit for responding was included. On 13 December, the claimant was told that her application had not been successful, however, she was offered an alternative role working two days per week as a teaching assistant. On 17 December, she received news that the job offer was withdrawn.

In the meantime, the headteacher had forgotten to send the reference and the other school did not chase. When speaking to the other school in January on another matter, the headteacher was advised that the reference was no longer required.

Also in January, the claimant noticed another job advertised at the same school described as ‘Teaching Assistant (SEN support)’. She applied but was told she was unsuccessful without an interview. She believed the role to be the same as the one she originally applied for.

Safeguarding referral

Separately, and also during December 2018, a referral was made to the Multi-Agency Safeguarding Hub following a cause for concern being raised in relation to the claimant’s child who also attended the school. The matter was later closed in March 2019.

On closure of the case, the claimant received a copy of the assessment record which had been completed by the social care team. The form included information provided by the headteacher which stated ‘Mother is a lunchtime supervisor and was previously disciplined for holding a child by the wrist whilst at work’.

Grievance

The claimant went on sick leave in March 2019 and raised a grievance in April 2019. A meeting with the claimant took place in May to discuss the grievance and a mediation meeting was arranged for June 2019. An occupational health report was also arranged to take place on 4 June 2019. The claimant resigned on 3 June 2019 having lost faith in the school’s ability to handle the grievance.

Direct race and religious discrimination

The claimant brought claims within the ET for direct race and religious discrimination for the following:

• A failure by the school to provide a reference.
• Telling social services that she had been disciplined for grabbing a child’s wrist.
• Associative discrimination in relation to her husband for telling social services that her husband did not care about their child’s happiness at school.
• Constructive dismissal.

Decision of the ET

The ET found that the headteacher did fail to provide a reference. However, it was found that this was not less favourable treatment and did not represent any detriment to the claimant because the job offer had been withdrawn. The failure to provide the reference was not the reason for withdrawal of the role. Further, if the claimant had been subjected to less favourable treatment by the failure to provide a reference, there was no evidence to suggest this was because of race and religion. The headteacher had simply forgotten due to the busy period leading up to Christmas.

The ET also found that the comments made to social services were made because of the headteacher’s safeguarding duty, not because of the claimant’s race or religion. The same was found in relation to comments made about the claimant’s husband to social services. As the ET had not found that the claimant was subject to any direct discrimination, there was no discriminatory conduct by the respondent which could be said to have amounted to a breach of contract entitling the claimant to resign and claim constructive dismissal.

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