When trying to decide if someone has been treated less favourably because of a protected characteristic, tribunals can make a comparison with someone hypothetical. In Governing Body of Sutton Oak Church of England Primary School and ors v Whittaker, the Employment Appeal Tribunal (EAT) confirmed that, if they do, there can be no material differences between the circumstances of the comparator and the worker.

Basic facts

Mr Whittaker, a gay teacher, was found alone by the headteacher in a classroom at lunchtime with a male pupil, known only as LK, to whom he was offering sweets. When the headteacher entered the classroom, Mr Whittaker allegedly went red and said: “What will happen now?”.

An investigation was carried out which noted that he had been disciplined 13 years previously for inappropriate contact with another male pupil. Following that incident, he had been issued with a set of guidelines which included the instruction never to be alone with a pupil except in an open area. The report also mentioned the word “grooming” and noted that LK shared a profile with the previous boy in that they were of similar physical appearance and both were vulnerable because of their home situations.

Following a disciplinary hearing, Mr Whittaker was dismissed. He brought various claims including direct discrimination on the grounds of sexual orientation.

Tribunal decision

In order to decide whether Mr Whittaker had been discriminated against, the tribunal chose a hypothetical, heterosexual male teacher who had been found alone with a female pupil as a suitable comparator.

It concluded that the comparator would not have been dealt with in the same way as Mr Whittaker, not least because there would not have been a presumption that the teacher was grooming the female pupil. Instead, an explanation by a heterosexual teacher that he was supporting the child in a pastoral way would have been more readily accepted.

The school appealed on the basis that the tribunal had failed to identity a hypothetical comparator whose circumstances were not materially different from those of Mr Whittaker, as required under section 23 of the Equality Act 2010.

EAT decision

The EAT first pointed out that the tribunal appeared to have incorrectly transmuted a conclusion in the report that Mr Whittaker’s “conduct could be considered to constitute early stages of grooming” to one where the conduct was “in the early stages of grooming”.  It then assumed that the reference to grooming must have influenced the disciplinary panel, an assumption that was not explained.

These deficiencies in its analysis were repeated in its analysis of the hypothetical comparator which, said the EAT, did not have any of the attributes of Mr Whittaker other than meeting the child alone.

For instance, it did not state whether he had been the subject of a warning 13 years previously for inappropriate contact with children, whether he had been subject to guidelines which the employer regarded as operative, whether he had given sweets to the child on more than one occasion and whether he had decided to undertake pastoral work without discussing it with any other teachers.

The EAT concluded that the failure, in particular to refer to the giving of gifts or sweets and to the fact that Mr Whittaker was subject to a prior warning about similar conduct, were material omissions which made the tribunal’s hypothetical comparator inappropriate.

It therefore remitted the matter to a differently constituted tribunal in respect of the decision of discrimination on the ground of sexual orientation.