Dr Nicholas Jones v The Secretary of State for Health and Social Care [2025] EAT 76

[2025] EAT 76Case No EA-2022-000744-JOJ
EMPLOYMENT APPEAL TRIBUNAL
Venue Rolls Building, Fetter Lane, London, EC4A 1NLDate 4 June 2025
Before
HIS HONOUR JUDGE JAMES TAYLEREMMA LENEHANCHARLES EDWARD LORD OBE
Between
DR NICHOLAS JONESAppellantTHE SECRETARY OF STATE FOR HEALTH AND SOCIAL CARERespondentDR NICHOLAS JONES Appellant- and –THE SECRETARY OF STATE FOR HEALTH AND SOCIAL CARE Respondent
JEFFREY JUPP KC (instructed through the auspices of Advocate) for AppellantMARIANNE TUTIN (instructed by Government Legal Department) for RespondentHearing Hearing date:4 January 2024
JUDGMENT ONREMISSION FROMCOURT OF APPEAL
[1]The claimant brought a claim in which he contended, so far as is relevant to this appeal, that he had been subject to direct race discrimination because he was not appointed to the role of Assistant Business Development Manager by Public Health England, the respondent. The claim was dismissed on the merits and was also found to have been submitted out of time.[2]The claimant applied for the role of Assistant Business Development Manager on 8 March 2019. An initial paper sift was conducted by Mr Darren Clehane, Senior Business Development Manager, and Mrs Carolyn Johnston, Assistant Business Development Manager. The claimant was successful at the sift stage, along with six other candidates.[3]The claimant was interviewed by Mr Clehane and Mrs Johnston on 28 March 2019. The candidates were asked standard questions and scored against a matrix. The claimant was appointable and scored the second highest of the four candidates. The candidate who received the highest score, Candidate B, was offered and accepted the role on 2 April 2019.[4]The claimant described himself in his ET1 claim form as being of African-Caribbean descenthaving been born in Bridgetown, Barbados. The successful candidate, Candidate B, is white, as are the candidates who came third and fourth.[5]As a result of an error, the claimant, and the other unsuccessful candidates, were not told that they had not been appointed for just over three months after the interviews. The primary three-month limitation period expired on 1 July 2019.[6]Correspondence ensued in which the respondent contended that they could not tell the claimant the protected characteristics of the other candidates because of GDPR issues. The claimant commenced ACAS early conciliation 30 September 2019; just under 3 months from the date on which he was notified that he had been unsuccessful in his application. This could not extend the time within which a claim could be submitted, unless an extension of time on just and equitable grounds was granted, because ACAS conciliation occurred after the primary limitation period had expired.[7]The claimant submitted a claim form that was received by the Employment Tribunal on 29 October 2019.[8]On 4 December 2019, the respondent submitted an ET3 response. The respondent contended that the claim was submitted out of time, denied discrimination and asserted that the claim was misconceived. Surprisingly, the respondent stated that the other unsuccessful candidates are white but did not mention that the successful candidate is also white.[9]It was only at a preliminary hearing on 23 June 2020, at which the respondent continued to argue that the claim should be struck out, that the Employment Judge asked Counsel for the respondent to take instructions, which he did and stated that the successful candidate is white. The Employment Tribunal hearing[10]The claim was considered by the Reading Employment Tribunal at a hearing held remotely on 14-17 December 2021. The claimant appeared in person and the respondent was represented by Ms Tutin of counsel.[11]The Judgment was sent to the parties on 22 January 2022. Written reasons were provided on 22 April 2022.[12]The Employment Tribunal dismissed the claim on the merits. The Employment Tribunal also concluded that the claim was out of time. The claimant appealed to the EAT. The first decision of the EAT[13]The claimant, acting in person, submitted a very lengthy notice of appeal, which was rejected on the sift. The appeal was permitted to proceed at a Rule 3(10) hearing on 23 March 2023, at which the claimant had the benefit of representation under the ELAAS scheme by Mr Jupp. Mr Jupp drafted concise grounds of appeal that were substituted for the grounds originally submitted by the claimant when acting in person.[14]Both parties dealt first with the time point because they accepted that if the appeal against the decision not to extend time on just and equitable grounds was unsuccessful the appeal as a whole must fail. We also heard full argument on all grounds of appeal.[15]The claimant asserted that the Employment Tribunal was perverse in refusing to exercise the discretion to extend time.[16]We considered the time limits in Equality Act 2010 (“EQA”) claims, and suggested that the common practice of relying on the comments of Auld LJ at paragraph 25 of Bexley Community Centre (t/a Leisure Link) v Robertson [2003] EWCA Civ 576, [2003] IRLR 434, that time limits in the Employment Tribunal are “exercised strictly” in employment cases and that a decision to extend time is the “exception rather than the rule” out of context, as if they were principles of law, should cease. We stated that the proposition of law for which Robertson is authority is that the Employment Tribunal has a wide discretion to extend time on just and equitable grounds, which is supported by the decisions in Chief Constable of Lincolnshire Police v Caston [2009] EWCA Civ 1298, [2009] IRLR 327 and Abertawe Bro Morgannwg University Local Health Board v Morgan [2018] EWCA Civ 640, [2018] ICR 1194 at paragraph 17-19.[17]We placed some reliance on the unreported decision of HHJ Richardson in Barnes v Metropolitan Police Commissioner and another UKEAT/0474/05 concerning the relevance of a suspicion that there has been discrimination to an application to apply a time limit greater than three months.[18]We concluded that the decision of the Employment Tribunal not to apply a time limit greater than three months could not be said to be perverse. We did not go on to determine the other grounds of appeal: Jones v Secretary of State for Health and Social Care,[2024] EAT 2, [2024] IRLR 275. Appeal to the Court of Appeal[19]The claimant appealed to the Court of Appeal. By a reserved judgment given on 13 December 2024, the Court of Appeal allowed the appeal. Bean LJ considered our reference to Barnes, holding: Barnes v Metropolitan Police Commissioner is a 2005 decision of the EAT which remains unreported to this day and is not even referred to in the current version of Harvey. This suggests that [19] of the judgment does not lay down a formula. But to the extent that it does I cannot agree with it. In many cases involving the 'just and equitable' discretion it will be highly relevant if the Claimant knew all the facts necessary to establish a discrimination claim but then failed without good reason to act promptly. I am much less persuaded that suspicion, or a firmly held belief based on suspicion, is a relevant factor. Until 2014 the statutory questionnaire procedure enabled prospective Claimants for discrimination to ask questions, with failure to answer them giving rise to the possibility of adverse inferences. That procedure is no longer available. Promptness in bringing ET claims remain important but this court, the EAT and ETs should not encourage cases to be brought on mere suspicion.[20]Two days earlier, on 11 December 2025, another division of the Court of Appeal had handed down judgment in HSBC Bank plc v Chevalier-Firescu [2024] EWCA Civ 1550, [2025] IRLR 268 overturning a decision of the EAT that an Employment Tribunal had erred in law in refusing to apply a time limit greater than three months. Underhill LJ considered Barnes and stated: 100 I can deal with the last point first. The discretion under s 123(1)(b) is indeed very wide, but where a claimant is asking for an extension of time on the basis that the they were unaware of important facts material to the viability of their claim it is necessary for the tribunal to consider what the extent of their knowledge (or grounds for suspicion) was, in order to be able to assess what justice and equity require. The EAT's criticism of the Judge's reasoning in this case relates to his factual findings on that question rather than to his exercise of any discretion based on them. 101 As to whether suspicion, as opposed to knowledge, of the facts which would found a valid claim is sufficient when considering whether a claimant reasonably could or should have brought proceedings sooner, I do not think that this can be a black-or-white question. There is a broad spectrum between certain knowledge, which is obviously sufficient, and mere speculation, which is obviously not; and 'suspicion' is an imprecise term which may connote a point anywhere on that spectrum. Clearly it will often be reasonable to expect a person to bring proceedings where their knowledge of the facts material to the prospects of success, or of the availability of the evidence necessary to prove those facts, is less than certain. Whether that is so in any given case depends on the particular circumstances, including, but not limited to, the degree of the uncertainty in question. 102 I would add – though the point is not central to the issue before us – that I agree with Judge Richardson at para 19 of his judgment in Barnes (see para 98 above) that, while the question of whether the claimant knew/suspected that they had a valid claim is always relevant, that is only the starting-point of the enquiry. As he says, it may also be relevant to consider whether, if they did not know or suspect it, they should have done; and, if they did, whether it was nevertheless reasonable of them to delay bringing proceedings. And, as he also says, those may not be the only questions relevant to the overall assessment of what justice and equity require.[21]We mention this, because there might be a difference of approach between the two decisions that may require resolution should the issue arise again.[22]Fundamentally, the Court of Appeal concluded that the decision of the Employment Tribunal on the time point was perverse and we should have upheld the appeal: 47 In those circumstances I consider that the ET's reasoning on the 'just and equitable' issue was erroneous, and that their conclusion lay outside the very wide ambit within which different views may reasonably be taken about what is just and equitable. I am therefore satisfied that the Claimant has surmounted the high threshold for establishing that the ET's decision that it would not have been just and equitable to extend time was perverse, and the order of the EAT upholding that decision, should be set aside. 48 We were told that the grounds of appeal to the EAT on the merits were fully argued at the EAT hearing. It is not suggested that we can or should deal with the merits grounds ourselves. I would allow the appeal and remit all the other pleaded grounds of appeal to the EAT relating to the merits to Judge Tayler and his colleagues (if they are available) to determine. Whether they are content to do so on the basis of existing submissions is a matter for them. Remission to the EAT[23]The Court of Appeal substituted a decision applying a time limit greater than three months such that the claim was submitted within time. As the Court of Appeal observed, we heard full submissions on the appeal. The Court of Appeal stated that it would be for us to decide whether we required further submissions. We decided that was not necessary. We have decided the remaining grounds of appeal in chambers on the existing submissions. The decision of the Employment Tribunal on the merits[24]The claimant applied for the role of Assistant Business Development Manager with the respondent on 8 March 2019.[25]The Employment Tribunal found as fact that the respondent adopted a two-stage process with an initial sift (“the stage 1 sift”) after which those who passed the stage 1 sift were interviewed (“the stage 2 interview”). Their performance at the stage 2 interview was the sole basis for the recruitment decision (“the stage 2 decision”). The Employment Tribunal concluded that the two processes were separate: 17. A question arose in the course of the evidence as to what role the conclusions drawn at Stage 1 of the process should play (if any) in Stage 2, the interview. The claimant essentially suggested that the scores at Stage 1 should, in some way, be carried forward to Stage 2 and influence the decision making at that stage. However, we find that that was not the respondent’s written policy and procedure. Nor is there a broader legal principle or rule that this has to be the approach taken by a fair and non-discriminatory employer. Mr Wood [Head of Recruitment in Human Resources] gave a good explanation as to why, in fact, not carrying Stage 1 scores forwards into Stage 2, is actually designed to minimise discrimination (or the risk of it) rather than let it leak into the system. Effectively, the respondent’s policy is to let those who are interviewed start the interview with a ‘clean sheet’ and with the interviewers holding no pre-conceptions about them based on the contents of their application form. The form itself has fulfilled its function of ensuring that the correct and suitable candidates get a chance at the interview. It is effectively a gatekeeping mechanism. Once candidates are at interview they have the opportunity to answer all the same questions as each other, according to their skills and experience. They may well draw some of their answers from the information which would be visible on the application form, or they may not. That is a matter of choice for each candidate in performing at an interview but it is giving everyone a fair chance so that the respondent can assess how they perform on the day. The respondent can assess how the candidates demonstrate their competence and suitability for the role against the relevant criteria. [emphasis added][26]The Employment Tribunal first considered the stage 1 sift. The job requirements, as set out in the Person Specification, included as “essential”:(1) A requirement to be educated to degree or higher level in business and/or science or equivalent level of experience working at a similar level.(2) Proven post graduate experience in a business or related function.(3) Experience in dealing with external and internal customers, negotiations and agreeing work programmes, reporting progress and dealing with issues to ensure delivery and customer satisfaction.(4) Evidence of success in efficient and effective project and programme management.(5) Skills for project management.[27]The Employment Tribunal described the claimant’s experience [5]: … the claimant has degrees: a BA in Foreign Language Studies, an MSc and a PHD in Organisational Management. The claimant’s CV indicates that his employment experiences had a strong marketing theme running through them, along with elements of sales. His experience was largely in the private sector in terms of the number of jobs he had had, although we note some public sector work when he worked for the Tourist Board in Barbados between 1992 and 2000.[28]The Employment Tribunal considered the claimant’s contention that Candidate B did not have sufficient relevant qualifications and experience to have passed the stage 1 sift: … We heard a lot of evidence around candidate B and how or why he should not have been put through to the Stage 2 interview. Our conclusions, having heard the evidence, are that the respondent’s witnesses both independently scored candidate B and the claimant as meeting the requirements for an invitation to interview. There is nothing in the evidence to suggest collusion between those two witnesses in carrying out the scoring exercise. 9. The claimant focussed on the fact that the candidate B does not have a degree and took issue with the fact that both he and candidate B went through to an interview. He felt that candidate B’s qualifications and experience had been overvalued and his own qualifications had been undervalued. However, the respondent’s witnesses rightly took us to the essential criteria for the post at page 215. They refer to education to ‘degree or higher level in business and/or science or equivalent level of experience of working at a similar level in a specialist area.’ This means that there was, in fact, more than one way for a candidate to meet the essential criteria. A degree was not the sole route. Other equivalent experience would achieve the same outcome. … On the face of it there is nothing wrong with the respondent putting two candidates through to interview, one of whom is qualified by a degree and the other of whom is not, so long as the respondent’s own criteria have been properly and fairly applied.10. We heard evidence from Mr Clehane and Mrs Johnston about how they carried out the scoring on the application forms. We found that both markers gave cogent evidence as to their reasoning for sending applicants through to the second stage. Judging and assessing the application forms required them to look at the breadth of the information provided on the form as against the criteria. The scorers had to use their judgment as to whether the application form met those criteria. They had to look at previous work experience and consider whether, in candidate B’s case, it met the ‘degree equivalence’ criterion. They provided the evidence of equivalence that they had found in candidate B’s application form. We had our attention drawn, in particular, to a number of matters. Firstly, candidate B had significant public sector experience working in the NHS. This was seen as an important factor as he would have knowledge of the culture and the particular features of the NHS as a public sector organisation. That would be pertinent to the role for which he was applying. Furthermore, he had experience of running his own business over a number of years and from that the scorers rationally deduced that he would have personal experience of business development, cost pricing and dealing with customers, again all pertinent to the job role in question with the respondent. There was evidence of him having worked with Cable & Wireless, a large organisation, and there was a rational assessment that this candidate had carried out project work and would have had to work to deadlines and work within a team. Even if that experience were further in the past, those project management skills would still remain and would still be relevant and indeed could be updated as required. Many of these observations relate to the concept of transferable skills. It is perfectly reasonable for an employer in the respondent’s situation to look for evidence of such transferable skills.11. The claimant put it to the respondent’s witnesses that candidate B was ‘just a care worker’ but the documentary evidence suggests that he had been a rehabilitation therapy manager and was considering training as a physiotherapist so the claimant’s generic description of him as a care worker perhaps understates the level of his expertise and ability. It is also relevant to note the respondent witness’s observation that the respondent rarely has candidates with such public and private sector experience and that this was something of particular interest and relevance to the respondent. This would be something they would want to probe further at interview.12. Nothing that this Tribunal has heard suggests that this was not an honest account of the witnesses’ marking process. The evidence suggests, and we find, that they genuinely rated both the claimant and candidate B as suitable to go through to the next stage. There was nothing untoward in this. Indeed, we also note that at this stage of the process there was no differential treatment between the claimant and candidate B. Both candidates got through to the second stage, as did two further applicants, C and D. It appears, on the evidence that we have heard, to be a rational decision based on cogent justifications. Unfortunately, the claimant appears not to agree with a value system or marking system where a formal paper qualification does not push an applicant up to the top of the rankings automatically. However, for the reasons already stated, it is open to a respondent to have the ‘degree or equivalent’ metric that we have examined.[29]Mr Jupp described candidate B in his skeleton argument: 12. The successful candidate, B, a white candidate, had the following qualifications and experience (application SB 108): English GCSE Grade C. A City & Guilds Qualification in Healthcare. A level 3 Advanced Apprenticeship in Health and Social Care Level. B had worked in care and therapy related roles with the NHS for about 7 years. He had worked for 4 months as salesman in a motorcycle business in 2012 and had run his own business selling classic cars and motorcycles for about 10 years ending in 2012, 7 years prior to the interview. In his application form he also claimed that during 2012 he operated a motorcycle business in New Zealand and, at the same time, worked both as a care assistant and then a motorcycle salesman in the UK. Some 17 years before the interview, from when he was aged about 18 to 25, B had spent 7 years in IT with Cable and Wireless. He scored 55.5 at interview.[30]The claimant asserts that there are errors and exaggerations in the assessment of the qualifications and experience of candidate B, including that the Employment Tribunal stated that candidate B had been a rehabilitation manager. Candidate B’s application shows he was employed as a Rehabilitation Assistant Practitioner and reported to the Therapy Manager. The respondent accepts that this is correct, but contend it is not relevant.[31]The Employment Tribunal said of the interview process: 13. Once the application forms have been scored we move to stage 2, which is the interview stage. On 28 March the claimant was interviewed for the position. Four candidates (including the claimant) were to be interviewed for the vacancy. The pre-prepared process was that interviews would be conducted by a panel of two: Darren Clehane and Carolyn Johnston. Mr Clehane was designated as the hiring manager. He had the overall recruitment responsibility for managing the process. Carolyn Johnston worked as an Assistant Business Development Manager and was line managed by Mr Clehane. She was doing the same job as the vacancy that the claimant was applying for. During the interview process the claimant and the other candidates were asked the same seven questions, which were each scored out of a maximum of five marks. Scores from both panel members were then to be added together to give the final score. The maximum score available to each candidate was 70. The claimant’s score was 52.5. All four candidates were then ranked from highest to lowest score. All four candidates achieved scores which meant they were of an appointable standard. The top score was achieved by candidate B and was a score of 55.5 marks. The claimant was ranked second highest in the rankings. The top scorer was offered the role, subject to references and pre-employment checks, on 2 April 2019. He was offered the role and accepted it on the same day. [emphasis added][32]The Employment Tribunal rejected the claimant’s contention that they should analyse the claimant’s answers as against those of candidate B:19. It is also important to note that the claimant asked the respondent’s witnesses to compare the answers given by candidate B and himself. For this purpose he drew up a table with the answers side by side and critiqued how he was scored as compared to how candidate B was scored against the respective questions. However, this is not the way that the respondent actually carried out the scoring. They did not compare the candidates against each other. They assessed each candidate against a scoring matrix. In fact, the respondent witnesses made the very valid point that this was the first time that they had been asked to look at the scores alongside each other and compare the candidates with each other. The task on the day was in fact to mark the candidate against the criteria and not to mark each candidate against the others and indeed we heard evidence that that is what took place.20. We also heard evidence that the questions set in this exercise had been used on a number of occasions for recruitment to similar jobs. So both of the people marking the interviews were aware of the kinds of answers which had been given in the past by successful candidates and which might be anticipated this time around. We find that the interview process is designed to ask the same question of each candidate and give equal opportunity to those candidates to demonstrate their experience and skills as against the job specification. The claimant says that the system is too subjective and that it could mask discrimination. We find that this system was as objective as it could be in the circumstances, particularly where an interview process forms part of the selection procedure. We understand why the claimant contends for an objective process. We also note that he referred, in his submissions to us, to doing the interview under ‘laboratory conditions’. This is an indicator of the standard to which the claimant is holding the respondent. We conclude that laboratory conditions (or anything approaching laboratory conditions) are not feasible or reasonably practicable in the context of an interview process involving human beings. This is not a scientific experiment with that degree of control and standardisation. Marking a candidate’s performance in interview will always necessitate an assessment by each individual interviewer of how they feel and observe the candidate to have performed against the scoring matrix. The interviewer has to draw conclusions as to what merits a particular level of score. It is unrealistic (and indeed impossible) to try and make it into a scientific answer.21. Having heard the evidence we conclude that, in the circumstances of this recruitment exercise, the respondent’s approach at interview provided the candidates with the best consistent interview experience possible. It is then for each individual candidate to perform well at interview and demonstrate their respective merits. We also note that at the conclusion of this process the differential between the claimant and the first ranked candidate was actually quite small.[33]The Employment Tribunal concluded: 57. We have asked ourselves what is the identified alleged act of discrimination in this case? The alleged discrimination is the failure to appoint the claimant to the March 2019 role. The respondent clearly failed to appoint the claimant to that role. That constitutes detrimental treatment. The crucial question is who is the comparator which we should use to carry out the comparison exercise that s.13 requires? The first option is candidate B, that is part of the way the claimant puts his case. We have reviewed this and have concluded that we do not think that he was a suitable and appropriate comparator because there are too many differences in material circumstances between the claimant and candidate B quite apart from the difference in race. This is particularly so given what the claimant says about the alleged inferiority of candidate B’s qualifications and experience as compared to the claimant. The 2010 Act asks us to find a similar comparator, not someone who could be considered inferior, as the claimant effectively characterises candidate B. If we were to do as the claimant requests, we would be answering the wrong legal question. There are too many differences between the claimant and candidate B in terms of their CVs, their experience and their interview performances for these to be proper comparators. So, with that in mind we look at a hypothetical comparator. What would be the material characteristics of the correct hypothetical comparator and what would have happened to them if they had gone through the same recruitment process as the claimant? Well, we find that the hypothetical comparator would be someone in the same pool of candidates as the claimant with the same information on their application form as the claimant and who performed similarly at interview and gave broadly the same answers to questions at the claimant. However, the hypothetical comparator would not share the claimant’s race. The hypothetical comparator would be competing against the same three candidates as the claimant did at the second interview stage. How would the hypothetical comparator have been treated? We find that there is nothing to suggest that a white comparator would have been appointed to the role. We conclude that the outcome of the selection process would have been the same. The comparator would not have been appointed either. This is because the basis for the appointment decision was the evidence which was elicited during the recruitment process and as a result of the proper application of the respondent’s processes. The comparator would have obtained the same scores as the claimant and the process would have dictated that as the first ranked candidate, candidate B, would still be offered the job first. The hypothetical white comparator would have ranked second (i.e. first reserve). There is nothing in the evidence we have heard which leads us to draw an inference of discrimination. There is no evidence of any conscious or sub-conscious consideration of racial characteristics. Based on our findings of fact the claimant has not demonstrated that there is an inference to be drawn from breaches of process and procedure that there was discrimination on racial grounds. The respondent genuinely chose those who they assessed as the best candidate for the role based on their performance at interview on 28 and 29 March. There was no material breach of procedure from which the Employment Tribunal could draw an adverse inference of discrimination. [emphasis added] The law[34]The EQA provides: 13 Direct discrimination(1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others. 23 Comparison by reference to circumstances (1) On a comparison of cases for the purposes of section 13, 14, 19 or 19A there must be no material difference between the circumstances relating to each case. 136 Burden of proof (1) This section applies to any proceedings relating to a contravention of this Act.(2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred.(3) But subsection (2) does not apply if A shows that A did not contravene the provision.[35]A number of questions may arise in complaints of direct discrimination: 35.1. What is the relevant treatment 35.2. Was that treatment different to that of another person 35.3. Were there any material differences between the circumstances of the claimant and any such other person? (where there are no material differences in circumstances the other person is an actual comparator – where there are material differences, but the circumstances are sufficiently similar in a more general sense, the other person may be an evidential comparator, whose treatment may assist in deciding whether to draw an inference of discrimination) 35.4. Was the claimant treated differently to how another person would have been treated? (in such circumstances that theoretical person is often described as a hypothetical comparator) 35.5. Are their facts from which the Employment Tribunal could conclude, in the absence of any other explanation, that the respondent breached the EQA 35.6. If so, has the respondent shown that it did not contravene the EQA[36]Sir Patrick Elias said in Law Society v Bahl [2004] EWCA Civ 1070, [2003] IRLR 640, that in considering any discrimination complaint: It is trite but true that the starting point of all Tribunals is that they must remember that they are concerned with the rooting out of certain forms of discriminatory treatment. If they forget that fundamental fact, then they are likely to slip into error.[37]There will often be a number of ways in which a complaint of discrimination could be analysed. The Employment Tribunal has to decide what is the relevant treatment and what are the material circumstances. Where the claimant seeks to compare his treatment with that of another person the Employment Tribunal will have to consider the extent to which that other person can be relied on as an actual or evidential comparator. If the correct questions are asked, the analysis of the Employment Tribunal can generally only be challenged if it is irrational.[38]In Martin v Board of Governors of St Francis Xavier 6th Form College [2024] EAT 22, [2024] IRLR 472, Cavanagh J considered and summarised the relevant law concerning the comparative exercise: Comparators54. Section 13 of the EqA requires that two matters be established for there to be a finding of direct discrimination. The first is that there has been treatment of the claimant (A) which is less favourable than the treatment that was meted out, or would have been meted out, to a comparator (B). The second is that the less favourable treatment was on the ground of the protected characteristic. Whilst it is open to an Employment Tribunal to go straight to the second question, the 'reason why' question (see Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] UKHL 11; [2003] ICR 337, at para 8, per Lord Nicholls of Birkenhead) it is common for a Tribunal to consider the 'comparator' question, as the Tribunal did in the present case.55. There are three potential types of comparator: an actual (or statutory) comparator, an evidential comparator, and a hypothetical (statutory) comparator.56. An actual comparator exists when there is no material difference between the circumstances relating to the claimant's case and the comparator's case. Express statutory provision is made for such a comparator in s 23(1) of the EqA, which states, '(1) On a comparison of cases for the purposes of section 13 … there must be no material difference between the circumstances relating to each case.' A comparison with an actual comparator (also known as a statutory comparator) may support or undermine a claimant's case. 58. However, it is clear that, even where the circumstances of a proposed comparator are not materially the same as those of the claimant, a Tribunal may take account of the way in which the respondent treated that person if there are some relevant similarities between their circumstances. A Tribunal may be assisted by seeing how unidentical, though not wholly dissimilar, comparators had been treated in relation to other individual cases. See Chief Constable of West Yorkshire Police v Vento [2001] IRLR 124 (EAT), at para 7, per Lindsay J. Such comparators are known as evidential comparators. 59. Furthermore, a Tribunal may consider whether it is assisted by considering how a hypothetical comparator in a similar (ie not materially different) position to the claimant, but who does not have the protected characteristic, would have been treated. Such a hypothetical comparator will be a statutory comparator, for the purposes of s 23. 60. It should be borne in mind, however, that the purpose of a Tribunal's consideration of comparators is to use it as an evidential tool to see whether an inference of discrimination is justified. It is not an end in itself. This was made clear by Lord Scott of Foscote in Shamoon, in the course of a very helpful summary of the law relating to comparators, at paras 107–110: … 62. For practical purposes, it may not make a great deal of difference as to whether a comparator is an actual comparator or an evidential comparator. In Watt (formerly Carter) v Ahsan [2007] UKHL 51; [2008] 1 AC 296, Lord Hoffman, with whom all of the other Lords agreed, said:
'37. It is probably uncommon to find a real person who qualifies under section 3(4) as a statutory comparator. Lord Rodger's example at para 139 of Shamoon of the two employees with similar disciplinary records who are found drinking together in working time has a factual simplicity which may be rare in ordinary life. At any rate, the question of whether the differences between the circumstances of the complainant and those of the putative statutory comparator are “materially different” is often likely to be disputed. In most cases, however, it will be unnecessary for the tribunal to resolve this dispute because it should be able, by treating the putative comparator as an evidential comparator, and having due regard to the alleged differences in circumstances and other evidence, to form a view on how the employer would have treated a hypothetical person who was a true statutory comparator. If the tribunal is able to conclude that the respondent would have treated such a person more favourably on racial grounds, it would be well advised to avoid deciding whether any actual person was a statutory comparator.' 63. The question, in direct discrimination cases, as to whether the situations of the claimant, on the one hand, and the proposed comparator, whether actual or evidential, on the other, are comparable is a question of fact and degree: Hewage v Grampian Health Board [2012] UKSC 37; [2012] ICR 1034. The Supreme Court upheld the view of the Inner House of the Court of Session, restoring the decision of the Employment Tribunal, that unless the Employment Tribunal's judgment could be said to be absurd or perverse it was not for the Appeal Tribunal to impose its own judgment on the point. To like effect, in Kalu v Brighton & Sussex University Hospitals NHS Trust (UKEAT/0609/12), Langstaff P said, at para 24, that the identification of a comparator is a question of fact. 64. In order for a comparator to be an actual or statutory comparator, is not necessary that the circumstances are the same in every particular. In Vento, above, Lindsay J said, at para 12: '… it is all too easy to become nit-picking and pedantic in the approach to comparators. It is not required that a minutely exact actual comparator has to be found.' 65. In Kalu, at para 24, Langstaff P said, '
The purpose of making the comparison … needs to be understood before a comparator may properly be identified.' In our judgment, this is of central importance. Whether a point of difference has any significance or not depends on the nature of the less favourable treatment about which complaint is made. So, for example, if the complaint is about the claimant not being selected for a job, whilst the comparator was selected, the fact that the claimant and comparator have similar academic qualifications may well be relevant if the job required developed intellectual skills, but it is not relevant if the job requires solely manual labour or (to use one of Langstaff P's examples) is to model clothing. Analysis[39]The grounds of appeal overlap to an extent and are considered in a different order to that in the amended grounds produced by Mr Jupp. The claimant challenges the decision of the Employment Tribunal to treat the stage 1 sift separately to the stage 2 decision. The claimant contends that the Employment Tribunal should have considered the process as a whole and decided on an objective basis whether the claimant was better qualified and had more experience than candidate B. If so, the burden of proof would have shifted to the respondent to prove that the claimant had not been subject to direct race discrimination. Mr Jupp also contended that there are factual errors in the determination of the Employment Tribunal.[40]In broad terms, we consider it was open to the Employment Tribunal to separate the stage 1 sift from the stage 2 decision. As Cavanagh J, approving Langstaff P, held in Martin it is necessary when analysing a comparison between the claimant and an actual, evidential or hypothetical comparator to determine the “nature of the less favourable treatment about which complaint is made”.[41]If an employer genuinely decides that at the first stage consideration will be given only to whether candidates meet threshold qualifications and experience criteria and thereafter a decision is made on the basis of performance at an interview, without further consideration of qualifications and experience, the fact that a claimant who passed the sift stage has better qualifications and experience than another candidate of a different race who also passed the sift is not relevant to comparing the outcome of the subsequent interview, at which no further consideration was given to their qualifications and experience. The correct analysis in such a case generally only involves consideration of their performance at interview.[42]That said, if there are such separate stages and both candidates passed the sift but the claimant was unsuccessful at interview, race discrimination could be established if the other candidate was favoured in a manner materially influenced by their race and otherwise would not have been successful at the sift, because in such circumstances, but for the treatment that was materially influenced by race (section 13 EQA refers to race rather than the claimant’s race), the comparator would not have moved to the interview stage and so, in circumstances in which the claimant came second at interview, the claimant would have been appointed as he would have come first absent the unlawful discrimination. But that analysis only works where, but for being treated more favourably than the claimant because of race, the comparator would not have passed the sift.[43]When the Employment Tribunal analysed the stage 2 decision it first considered whether candidate B was a comparator. The Employment Tribunal concluded that candidate B could not be an actual comparator because “there are too many differences in material circumstances”. It is a little difficult to ascertain whether the Employment Tribunal was referring to differences asserted by the claimant or that the Employment Tribunal accepted as a matter of fact. The Employment Tribunal referred to “what the claimant says about the alleged inferiority of candidate B’s qualifications”, “someone who could be considered inferior, as the claimant effectively characterises candidate B", but also to there being “too many differences between the claimant and candidate B in terms of their CVs, their experience and their interview performances” [emphasis added].[44]This analysis is logically incompatible with the determination that the stage 1 sift was wholly separate from the stage 2 decision, which turned only on the candidate’s performance at the stage 2 interview, the Employment Tribunal having held that “the respondent’s policy is to let those who are interviewed start the interview with a ‘clean sheet’ and with the interviewers holding no pre-conceptions about them based on the contents of their application form”. The Employment Tribunal concluded that there was no discrimination at the stage 1 sift stating “at this stage of the process there was no differential treatment between the claimant and candidate B” because both “candidates got through to the second stage”. As discussed above, this does not necessarily follow if Candidate B would not have passed the stage 1 sift but for being more favourably treated because of race.[45]As the qualifications and experience referred to in the candidate’s CVs were said to be irrelevant once the candidates started with a “clean sheet” when they attended the stage 2 interviews, differences in qualifications and experience that were not taken into account at the stage 2 interviews could not be material differences that meant that candidate B could not be an actual comparator.[46]The Employment Tribunal also did not consider whether, even if candidate B was not an actual comparator, he might be an evidential comparator.[47]The Employment Tribunal analysed the matter by considering a hypothetical comparator. The Employment Tribunal held that the hypothetical comparator would have “obtained the same scores as the claimant”. We were concerned that the Employment Tribunal had treated obtaining the same score as the claimant as part of the process of defining the hypothetical comparator, thereby negating any possibility of discrimination. However, on analysing paragraph 57 as a whole, we conclude that the decision that a hypothetical comparator would have been treated in the same way as the claimant was based on the analysis that there was “nothing in the evidence we have heard which leads us to draw an inference of discrimination”.[48]The difficulty with this analysis is that it is based on the Employment Tribunal rejecting candidate B as a comparator and the refusal to compare the answers that the claimant gave in interview to those given by candidate B. The Employment Tribunal noted that “the claimant asked the respondent’s witnesses to compare the answers given by candidate B and himself” and that “he drew up a table with the answers side by side and critiqued how he was scored as compared to how candidate B was scored against the respective questions”. The Employment Tribunal rejected the claimant’s comparative analysis on the basis that “this is not the way that the respondent actually carried out the scoring” because they “assessed each candidate against a scoring matrix”. This analysis was irrational. The Employment Tribunal should have analysed, putting aside the qualifications and experience considered at the stage 1 sift, whether candidate B was an actual or evidential comparator. If so, it was relevant to compare how the claimant was scored as against the scoring matrix as opposed to how candidate B was scored against the scoring matrix, which could potentially have provided substantial evidence of discrimination.[49]We have concluded that the Employment Tribunal therefore erred in law in its analysis of the stage 2 decision because of its failure to properly analyse whether candidate B was an actual or evidential comparator and, if so, to consider the scoring of the claimant as against that of candidate B.[50]We have also concluded that the analysis of the stage 1 sift cannot stand. The Employment Tribunal failed properly to consider the possibility that, notwithstanding the fact that both the claimant and candidate B were successful at the stage 1 sift, if candidate B was favourably treated in a manner that was materially influenced by his race, and but for that treatment he would not have passed the stage 1 sift, that could have been detrimental treatment of the claimant because the claimant would otherwise have scored highest at the stage 2 interview and so would have been appointed. There is also at least one highly significant factual error in the analysis of the Employment Tribunal in that it described candidate B as having worked as a rehabilitation manager whereas he had worked as a Rehabilitation Assistant Practitioner. This raises the question of whether the respondent significantly overemphasised the qualifications and experience of candidate B. Furthermore, although we accept that the Employment Tribunal was entitled to conclude that the stage 1 sift and the stage 2 interviews were separate, in that the qualifications and experience taken into account at the stage 1 sift were not taken into account at the stage 2 interviews, as both stages were conducted by the same people any conclusion that there was discrimination at the stage 2 interview might be relevant to the analysis of the stage 1 sift. Disposal[51]We have concluded that the appeal must be allowed, and this complaint be remitted to the Employment Tribunal for full redetermination. Having regard to the guidance in Sinclair Roche & Temperley v Heard [2004] IRLR 763, we have concluded that the remission should be to a different Employment Tribunal because the decision was fundamentally flawed and because remission to the same Employment Tribunal will not result in a significant saving of expense as the complaint must be assessed again. Case management will be a matter for the Employment Tribunal.

Cited in 11 later judgments

and 2 more of the most senior