In person (no participation on 5 August) For the v Respondent — 2019

The claimant, a probation officer of Nigerian origin, complained about a single act on 8 August 2018 when his line manager, Ms Everitt-Story, emailed Hertfordshire Children’s Services about concerns that he might take his daughter to Nigeria and arrange FGM. The tribunal accepted that the referral arose after the claimant had resigned and after a series of discussions about childcare, family arrangements, and his possible return to Nigeria. It also accepted that the managers were influenced by their probation background and their perception of risk, but rejected any finding that they asked the claimant about the concern before making the referral.

On the direct discrimination claim, the tribunal held that the claimant’s Nigerian national origin was a material factor in the referral, but that the claim still failed because a properly constructed hypothetical comparator in materially similar circumstances would have been treated in the same way. The comparator was a father with the same resignation and family circumstances, but whose national origins lay in a country where FGM is not unlawful and is practised, who had spoken of returning there and against whom an FGM allegation had previously been made. On that basis, the tribunal concluded that the claimant had not shown less favourable treatment for the purposes of s.13 Equality Act 2010.

The alternative harassment claim succeeded. The tribunal held that the referral was unwanted conduct related to race, in the sense that it was materially connected to the claimant’s Nigerian national origins and the managers’ thinking about Nigeria and FGM. Applying s.26 Equality Act 2010 and the factors in s.26(4), it found that the referral had the effect of violating the claimant’s dignity. The tribunal noted the claimant’s perception that the earlier FGM allegation had already been closed by HCS, that there was no evidence he intended to arrange FGM, and that the respondent had not raised the concern with him before contacting social services.

On remedy, the tribunal made no award for financial loss. It awarded £9,000 for injury to feelings, at the bottom of the middle band, and interest of £1,436.06 calculated at 8% from 8 August 2018 to the date of judgment. The total award was £10,436.06.