Claimants who lodge a claim of direct race discrimination can compare themselves with an actual comparator if their circumstances are materially the same or - where they are sufficiently alike - a tribunal may infer discrimination. In Virgin Active Ltd v Hughes, the Employment Appeal Tribunal held that the tribunal was wrong in analysing the claimant's treatment compared to others when deciding that the burden of proof had shifted to the respondent to disprove discrimination.
Basic facts
Having worked for Virgin Active (the respondent) for several years at the Chelmsford gym, Mr Hughes (the claimant) was promoted to the post of manager at the Mayfair club. After an audit which raised several serious concerns about how it was being run, Mr Hughes (who is white) carried out an investigation and then started disciplinary proceedings against three members of staff (who are black).
All three then lodged grievances against Mr Hughes. Mr Giovanni complained about his management style; Ms Arasp complained that he had racially harassed and bullied her about her Iranian heritage after the terrorist attack at London Bridge and Borough Market in June 2017; and Ms George alleged that he was “only doing this [to her] as I am old, black and fat”. He was then suspended, prompting him to lodge his own grievance which was ignored. After an investigation into the complaints of the three staff members, he was summarily dismissed for gross misconduct.
Mr Hughes lodged claims for automatic unfair dismissal based on having made protected disclosures (blowing the whistle) and discrimination on the grounds of race, among other things, arguing that he was treated differently to the three members of staff whom he had investigated.
Tribunal decision
The tribunal agreed that Mr Hughes had made protected disclosures and been dismissed as a result. It was also highly critical of the procedure that the organisation had followed and the way that it had dealt with his grievance.
In addition, it upheld his claim of race discrimination. Firstly, the company had failed to investigate a discrepancy regarding the date that Mr Hughes had allegedly made the racist comment to Ms Arasp; and secondly, it had failed to investigate Ms George’s allegation about Mr Hughes (which he considered to be racist) whereas he had been dismissed for allegedly making a racist comment to Ms Arasp.
As the company had failed to prove on the balance of probabilities that the dismissal was unrelated to his race, the tribunal concluded that it was guilty of unlawful direct race discrimination against Mr Hughes. The company appealed, arguing that the tribunal had applied the wrong legal test to the race discrimination claim, among other things.
EAT decision
The EAT gave the example of two people who attend a job interview and who differ regarding a specific protected characteristic. One is appointed but the other is not. It held that those circumstances would not be enough in and of themselves to require the employer to prove they had not discriminated. However, if the candidates scored the same marks in the assessment, thereby providing an actual comparator, “the difference of treatment would seem to call out for an explanation”.
In claims of unlawful race discrimination, the EAT said that claimants can either:
- compare their treatment with an actual comparator if there are no material differences between their circumstances, or
- provide evidence of discrimination where the circumstances are similar, thereby allowing the tribunal to draw an inference of discrimination.
The EAT concluded that the tribunal was wrong in its analysis of the treatment of the claimant in comparison with others when deciding that the burden of proof had shifted to the respondent to disprove discrimination and it remitted the race discrimination claims for rehearing.
Comment
This case is a reminder that the initial burden sits with the claimant to prove facts from which the tribunal can conclude discrimination has occurred before that burden shifts to the respondent.