Employment Law Advocates

The Employment Appeal Tribunal decision¬†in Jobcentre Plus v Whyment-McCarthy raises what, on the face of it, looks like an interesting point. It was argued¬†for the respondent that the tribunal had fallen into error by asking itself¬†whether the claimant had been treated less favourably than a comparator while considering¬†the explanation of the respondent, rather than at the earlier stage of determining whether there had been a shift in the burden of proof. Justice Slade says that this is “too technical an approach”.

However, upon reflection, the argument advanced¬†in this case¬†is not only technical. It is also dead wrong. The comparator was a¬†hypothetical one and so, if he would have been treated more favourably than the claimant, this is a complete answer to the question of whether or not¬†he was discriminated against on the grounds of his sexual orientation. As Justice Elias (as he then was) stated in his comprehensive review of¬†the¬†law in London Borough of Islington v Ladele, at paragraph 35, “in practice a Tribunal is¬†unlikely to be able to identify the statutory or hypothetical comparator without first answering the question why the claimant was treated as he or she was”. This cannot possibly¬†be done until the end of the second stage.

The confusion seems to arise from the frequent¬†sloppy use of the word ‘comparator’ to refer to somebody for whom the relevant circumstances are materially different from those of the claimant.¬†As far as the statute is concerned, such a person is not a comparator at all, although evidence of how that person¬†is treated may be helpful in order to try to¬†construct a genuine hypothetical comparator. It seems to me that the consideration of imperfect comparators should often take place at the first stage although there are certainly some¬†situations in which the burden of proof¬†can¬†reverse without it even being necessary to¬†deal with¬†them. However, true¬†statutory comparators can never¬†meaningfully be considered at the first stage.