Assessing the suitability of a comparator in a discrimination case

In the case of Olalekan v Serco Ltd, the Employment Appeal Tribunal (EAT) ruled on how an individual is able to justify a comparator in a direct discrimination claim.

This case centred around a black Prison Custody Officer (PCO) who was dismissed following an alleged assault on a restrained prisoner. Olalekan appealed this decision and claimed his dismissal was discriminatory on the grounds of race, suggesting other white PCOs had not been dismissed for similar assaults. In support of this claim, he provided a list of comparable white PCOs who had not been dismissed following accusations of assault and three black PCOs who had.

The Director of the prison investigated the comparators but determined that the circumstances in the aforementioned cases were materially different to that of the present case. He therefore upheld the decision to dismiss the employee, who later brought claims to the employment tribunal (ET) for unfair dismissal and direct race discrimination on the grounds that he had been treated differently to a comparator i.e. the white PCOs who had not been dismissed.

The ET dismissed his claims, as there was no evidence to suggest any PCO who acted in this manner would not have been dismissed, regardless of their race. This was because the Director of prison had demonstrated that the white comparators provided by Olalekan, who had not been dismissed, were in a materially different to position to himself and their cases had all been dealt with on their own individual merits. The ET summarised that 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.

Olalekan chose to appeal to the EAT on the basis that the ET had failed to look into all of the incidents where a white PCO had been treated more favourably and not dismissed. However, the EAT dismissed his appeal and explained that, in situations where the comparators’ circumstances are different, their situation can still be of evidential value but will ultimately be weakened by these material differences.

When applied to this case, the EAT explained that the individual circumstances of the white PCOs who had not been dismissed were sufficiently different to render them of limited assistance. Therefore, the initial ET 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.

Interestingly, despite this, the EAT also dismissed an argument from Serco Ltd that the circumstances of the comparators were materially different as they had been decided by different managers. Instead, they confirmed that 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.

With this in mind, employers should ensure that all employees are treated equally when responding to incidents of misconduct. They should also keep in mind that employees seeking a claim for direct discrimination will need to demonstrate that a comparable employee, or hypothetical comparator in the same situation, would not have been subjected to the same detriment and that the reason for their detrimental treatment was their protected characteristic.

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