Under the Equality Act 2010, direct discrimination occurs where a person is treated, or would have been treated, less favourably than others, because of a protected characteristic, in circumstances where there is no material difference, i.e. comparison in a like-for-like, actual, or hypothetical, situation in terms of: (i) the capabilities, conduct, etc., of the comparators; and (ii) the circumstances of the case, e.g. a job interview, the disciplinary process, etc..
In CP Regents Park Two Ltd v Ilyas, the Operations Director (OD) interviewed reception staff, including Ilyas, about a number of financial transactions, after having dismissed the assistant financial controller, Ahmed, for misappropriating company money. Ilyas and Ahmed are of Pakistani origin. A tribunal upheld Ilyas’ claims of direct racial discrimination when compared to the treatment of other reception staff. It decided that the OD pre-determined Ilyas’ culpability because he and Ahmed were of Pakistani origin and firstly, the investigatory meeting had been conducted in an unduly aggressive and inappropriate manner and secondly, Ilyas had been singled out for disciplinary action when no other reception staff had been referred.
The EAT held that two different comparators were required as the circumstances changed as the disciplinary process progressed. The tribunal was right to use the other receptionists as comparators in both situations. The tribunal was also right in deciding that Ilyas had been treated less favourably in the investigatory process because other receptionists were not treated aggressively and inappropriately. However, on the issue of referring Ilyas for disciplinary action, the tribunal had found that his responses to the investigatory questions were not adequate, but those of the other reception staff were satisfactory. Therefore any comparison would have to be with another employee who had failed to provide adequate responses to the allegations. But the tribunal had not properly considered whether Ilyas had been treated less favourably in these circumstances and the decision was unsafe.
Where a direct discrimination claim forms the basis of a complaint or a grievance, this case shows that careful consideration needs to be given to identifying the correct comparator and that in some cases where the circumstances change, then so may the comparators. Identifying comparators is not easy, as case law shows, and employers should consider taking legal advice so they can provide a sound basis for their conclusions.
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