Mr Ajay (counsel) For the v Respondent — 2023

The tribunal heard evidence about two linked incidents on 1 October 2020: an exchange in the staff room between E1 and E5 about a student, and a later photocopier confrontation between the claimant and E1. It preferred the contemporaneous evidence and found that the claimant had not proved that E1 said the words she alleged in the staff room. Instead, it found that E1 asked whether the student smelled in the context of a discussion about an Ethiopian student and COVID concerns, which it treated as a neutral question on the facts it accepted.

On the photocopier incident, the tribunal relied on CCTV and the parties' later admissions. It found that the claimant put E1's papers on the floor, pointed first, and then swiped E1's arm or hand away. The claimant later accepted she had engaged in misconduct, and the tribunal found that the respondent's decision to issue a first written warning on 13 January 2021 was based on that conduct and was the least stringent sanction available under the disciplinary policy. It rejected the argument that the warning was less favourable treatment because of race, including when compared with E1 or a hypothetical comparator.

The harassment claim failed because the tribunal did not find the alleged racist comments were made and did not accept that the reference to smell was unwanted conduct related to race. It also held that the warning itself was not racial harassment. The victimisation claim failed because E1's complaint on 1 October 2020 was found to be an accurate account of the photocopier incident, not a false allegation, and the tribunal did not accept that it was made because of the claimant's protected act or because E1 believed the claimant would make one. All claims were dismissed.