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The use of a different decision-maker is not a ‘material difference in circumstances’ when considering an allegation of less favourable treatment

04 April 2019

To bring a claim of direct discrimination under the Equality Act 2010, a claimant must show that they have been treated less favourably when compared to another employee because of a protected characteristic, such as sex, race, age or disability. A claimant must identify a real or a hypothetical comparator and the EqA 2010 requires there must be no material difference between the circumstances. As Lord Scott commented in the 2003 case of Shamoon v Chief Constable of the Royal Ulster Constabulary:

"...the comparator required for the purpose of the statutory definition of discrimination must be a comparator in the same position in all material respects as the victim save only that he, or she, is not a member of the protected class."

For example, a female sales manager who is found to be falsely reporting her sales figures in order to achieve a higher bonus should be compared to a male sales manager who is falsely reporting his sales figures in order to achieve a higher bonus, rather than a male sales manager who is failing to achieve his sales targets. In the first case, there is a like for like situation; in the latter, there are material differences between the two circumstances since one is based on misconduct and one is based on performance.

More recently, the Employment Appeal Tribunal (EAT) has been faced with the question of whether the fact that similar disciplinary allegations are heard by different managers, with different mental processes, amount to a material difference in circumstances?

This was a situation that arose in the case of Olalekan v Serco Ltd (2019). The Claimant, a Prison Custody Officer (PCO), was dismissed for gross misconduct after it was found that he had used excessive force when restraining a prisoner. He alleged that his dismissal was direct discrimination on the grounds of his race, comparing himself (and three other black PCOs who had been dismissed in similar circumstances) to five white PCOs who had not been dismissed following a finding of excessive use of force.

One of the arguments put forward by the Respondent’s Counsel was, as summarised by the EAT, that “as it is the mental processes of the decision-maker that should be the focus of scrutiny in a direct discrimination claim, there is limited evidential value to be gleaned from considering how other situations were treated by different decision-makers”.

This argument was rejected by the EAT, although not entirely. Mr Justice Choudhury commented an employer may be liable for discriminatory treatment towards different employees in similar circumstances, even though different decision-makers were involved. To suggest otherwise as a blanket approach would be limiting to an employee presenting a direct discrimination claim.

Mr Justice Choudhury did recognise that there may be some circumstances where the use of different decision-makers could amount to a material difference, for example if they were following different policies in place at different times.

This decision reminds us of the importance of training managers and those responsible for hearing disciplinary allegations so that a consistent approach is followed by all.

By Michelle Tudor

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