Ms M McGee (Counsel) v And and 1 other — 2022

This was a preliminary hearing before Employment Judge Glennie on 27 September 2022. The Claimant brought claims of direct race discrimination, race-related harassment, and unfair dismissal. The hearing concerned strike-out and deposit-order applications rather than the final merits of the claims.

On the First and Third Respondents' applications, the tribunal refused to strike out any part of the race and harassment complaints. It took the comparator documents at face value and considered it unlikely, though not impossible, that Ms F and Ms S would be found Irish. It also regarded the comparator issue concerning Ms O'D as arguable, given the dispute about whether her teaching qualification made her circumstances materially different from the Claimant's for Teaching Assistant roles.

The tribunal accepted that the April vacancy and the September appointments could still be argued as part of the same course of conduct as the non-renewal complaint, but it found little reasonable prospect of success on some harassment points. In particular, it held that the phonics-training complaint was different in subject matter and decision-maker, so there was little reasonable prospect of it being treated as conduct extending over a period, and no basis had been advanced for a just and equitable extension of time. The tribunal therefore made deposit orders, and the total deposits ordered were £375 after hearing that the Claimant had no income but family support and could afford around £200 to £300.

The Second Respondent, London Borough of Ealing, was struck out in relation to the unfair dismissal claim. The tribunal held that, under section 36(2) of the Education Act 2002, the governing body of the voluntary aided school was the employer. On that basis it concluded that the unfair dismissal claim against the Second Respondent had no reasonable prospect of success.