Employment & Pensions Blog: The importance of comparators when assessing discrimination

In the recent discrimination claim of Virgin Active Ltd v Hughes, the Employment Appeal Tribunal (the EAT) looked into the importance of comparators when assessing whether discrimination has taken place.

Background

The Respondent operates a number of fitness clubs.  During the course of an audit, the Claimant raised serious concerns about the operation of the club of which he had just become the Manager. As a result, the Claimant was asked to conduct disciplinary meetings with several staff members who subsequently raised a number of grievances against him. Disciplinary proceedings were in turn instigated against the Claimant on the basis that he had made an inappropriate comment of a racist nature, made an inappropriate comment about another employee’s sexual orientation and subjected staff to bullying and harassment.  Following a disciplinary hearing the Claimant was summarily dismissed. The Claimant appealed this decision, but his appeal was not upheld. The Claimant also raised a grievance which wasn’t upheld. 

The Employment Tribunal Decision 

The Claimant successfully brought claims for automatic and ordinary unfair dismissal, as well as race discrimination in relation to the handling of his disciplinary and grievance. 

In analysing the race discrimination complaint, the Tribunal considered three of the Claimant’s colleagues as comparators, whose circumstances were significantly different from the Claimant’s. The Tribunal held that the differences in treatment of the comparators shifted the burden of proof to the Respondent which meant that in order to defend the claim, the Respondent needed to disprove the alleged discrimination. 

The EAT Judgment

The Respondent appealed to the EAT on various grounds but only succeeded in overturning the findings of race discrimination. The EAT held that the Tribunal had erred in its findings and remitted the claim for race discrimination back to the Tribunal for consideration again. 

The EAT found that the Tribunal had not said whether the Claimant’s comparators were suitable comparators or not when on the face of it, their circumstances were different from those of the Claimant’s. The EAT reiterated that a Tribunal must consider whether there are material differences between a claimant and an actual comparator. The greater the difference between the situations between a claimant and comparator, the less likely it is that the difference of treatment suggests discrimination.

Comments

This EAT Judgment acts as a good reminder of the importance of adequately construing a comparator and the impact this could have on the outcome of a claim. The comparator must have the same or nearly the same circumstances as the claimant. It also reiterates that in discrimination claims, the burden of proof is firstly on the claimant to show sufficient facts from which it can be deduced that a difference in treatment could be because of a protected characteristic. There needs to be something more than just a difference in treatment before the burden of proof can properly shift to a respondent to have to evidence that the difference in treatment was unrelated to the protected characteristic. 

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