Olalekan v Serco - Race discrimination hypothetical comparator

Employment Appeal Tribunal – January 2019 

The Employment Appeal Tribunal (EAT) has ruled that a person who was otherwise a suitable comparator in a direct discrimination claim was not rendered unsuitable merely because a different decision maker was involved.

Section 23 of the Equality Act 2010 instructs that an employee who claims race discrimination will need to show that they have been treated less favourably than a real or hypothetical comparator whose circumstances are not materially different to theirs.

Facts

This case concerned a black Prison Custody Officer (PCO) who was dismissed following an assault on a prisoner whilst the prisoner was being restrained. At an appeal hearing, the employee claimed that this dismissal was unfair and discriminatory on the grounds of race as other white PCOs had not been dismissed for similar assaults. To support his claim, he provided a list of comparable white officers who had not been dismissed following accusations of assault, and three black officers who had.

The Director of the Prison agreed to investigate the circumstances surrounding the other officers who had not been dismissed during his short tenure as Director when a zero tolerance policy on violence was introduced, finding that the circumstances were materially different to the present case. He therefore upheld the decision to dismiss the employee, who later brought numerous claims to the employment tribunal (ET) including unfair dismissal and direct race discrimination on the grounds that he had been treated differently to a comparator ie the white prison officers who had not been dismissed.

ET

The ET dismissed his claims.

In forming their decision to dismiss the direct discrimination claim, the ET held that there was no evidence to suggest any officer who acted in this manner would not have been dismissed regardless of their race. This was because the Prison Director had demonstrated that the comparators were in a materially different position to the employee when they were not dismissed and their cases all been dealt with on their own individual merits. 

The ET went on to explain that ‘consistent evidence’ from the prison had brought them to the conclusion that any prison officer who had committed a similar assault would have been dismissed regardless of their race. Therefore, the striking of the prisoner had amounted to ‘an assault on a compliant and restrained prisoner’ and the prison had been correct to dismiss the employee in this case. 

The employee appealed this decision to the employment appeal tribunal (EAT) claiming that there had been a failure to look into all the incidents where a white prison officer had been treated more favourably and not been dismissed.

EAT

The EAT dismissed his appeal.

They explained that, in situations where the comparators’ circumstances are different, their situation can still be of evidential value but will be weakened by these material differences. When applied to this case, the circumstances of the white prison officers who had not been dismissed were sufficiently different to render them of limited assistance. Therefore, the tribunal was correct to find that a white comparator in similar circumstances would have been summarily dismissed and that no direct discrimination on the grounds of race had taken place.

Despite this, the EAT also dismissed an argument from the organisation that the circumstances of the comparators were materially different because they have been decided by different managers. This was because protections afforded to employees from discrimination dictate that an organisation can be liable for the acts of their employee or agent. The existence of a different decision maker will not automatically lead to a conclusion that there is a material difference for the purpose of identifying a comparator.  

Note for employers

When claiming discrimination has taken place, the onus is on employees to demonstrate that a comparable employee, or hypothetical comparator, would not have been subjected to the same detriment and the reason for their detrimental treatment was their protected characteristic. It will not usually matter if a different decision maker was involved, provided they are not operating under a different policy or at a different level.

Organisations should ensure that all employees are treated equally when responding to incidents of misconduct. It is advisable to maintain clear company policies that outline how employees will be treated in these situations and what forms of misconduct could result in a dismissal.

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