Was the tribunal correct, in a direct race discrimination claim, to treat a colleague who made a comment about her own race as an actual comparator of a Claimant who had made a comment about a colleague’s race?
No, held the EAT in Virgin Active Ltd v Hughes.
The Claimant was a gym manager. He was dismissed, and won tribunal claims for unfair dismissal, automatic and ‘ordinary’, and race discrimination relating to the handling of his disciplinary and a grievance. The Respondent appealed on various grounds only succeeding in overturning the findings on race discrimination.
In analysing the race discrimination complaint, the tribunal had considered three of the Claimant’s colleagues as comparators, whose circumstances appeared to differ significantly from the Claimant’s. The tribunal held that the differences in treatment of the comparators shifted the burden of proof and upheld the complaint.
The EAT held that the tribunal had erred. It had not said whether the Claimant’s comparators were actual comparators when on the face of it, their circumstances differed from the Claimant’s. A tribunal must consider whether there are material differences between a claimant and an actual comparator. The greater the differences between the situations between claimant and comparator, the less likely it is that the difference of treatment suggests discrimination.
The EAT gave an example of two people of different races have a job interview, if one succeeds at interview and the other does not, that wouldn’t be enough by itself to shift the burden of proof, but if both candidates scored equally in an assessment, that might well shift the burden. The judgment also contains a useful summary of why delay in and of itself isn’t a ground of appeal.
Thanks to Ed McFarlane for preparing this case summary.