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Sexual Orientation Discrimination and Hypothetical Comparators

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Does a tribunal's failure to apply the circumstances of a claimant to the hypothetical comparator it seeks to compare to that claimant amount to an error of law?

If those circumstances render the comparator materially different then yes, held the EAT in Sutton Oak Church of England School v Whittaker.

The Claimant, a male gay school teacher, was dismissed for being in a classroom alone with, and offering sweets to, a male year 5 pupil during a lunchtime break. This was in breach of guidelines issued to him 13 years prior as part of an earlier disciplinary outcome. The Claimant initially succeeded in claims for unfair dismissal and direct sexual orientation discrimination before a tribunal. In finding the discrimination claim proven, the tribunal had used a hypothetical comparator in the form of "a heterosexual male teacher found alone with female pupil".

Overturning the finding of discrimination, the EAT held it was not clear whether the tribunal's comparator had been the subject of a warning in 2002 for inappropriate contact with children, a point the EAT was not prepared to infer.

Without this important qualification, the comparator's circumstances were materially different to those of the Claimant and the matter had to be remitted.

Thanks to Barnaby Large of No.18 Barristers Chambers for preparing this case summary.