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Discrimination - comparator need not be in identical circumstances

09 August 2012 #Employment

In the case of Hewage v Grampian Health Board the Supreme Court have confirmed the approach a tribunal should take in deciding cases of discrimination.

The claimant was a dentist at the Aberdeen Royal Infirmary and claimed that she had been bullied and harassed because she was a Sri Lankan woman. Unfair constructive dismissal was conceded by the respondent.

The tribunal found that she had been discriminated against on grounds of her sex and race, in part because of the hospital’s different treatment of two white male colleagues. These colleagues had also experienced issues with the individual who bullied the claimant but, unlike the claimant, one had received cooperation and assistance and the other had his role altered so he did not meet the individual.

The Employment Appeal Tribunal quashed the findings of discrimination but this decision was reversed by the Court of Appeal. The respondent appealed again to the Supreme Court.

The Supreme Court referred to the case of Wong v Igen Ltd (formerly Leeds Careers Guidance) which held that the tribunal must go through a two stage process in deciding whether discrimination has taken place. In the first stage, the claimant is required to prove facts from which the tribunal can conclude, in the absence of an adequate explanation, that the respondent committed the discrimination. Tribunals may draw inferences of discrimination by considering how a claimant was treated compared to others, even if the situations compared are not precisely the same. Once the claimant proves these facts, the second stage requires the respondent to prove that it did not commit that act.

In this case, the court held that although the claimant’s circumstances were not exactly the same as either comparator, there was sufficient similarity, given the stark difference in treatment, to justify the tribunal`s inference of discrimination. The respondent failed to prove that it had not discriminated.


Once the claimant has shown a "prima facie" case of discrimination, the burden of proof shifts to the employer to prove that discrimination did not occur. As the above case shows, tribunals may infer discrimination even where the comparator is not “like-for-like”, hence the need for employers to record and keep contemporaneous evidence to explain any differences in treatment between employees bringing grievances based on similar, if not identical facts. For more information on what constitutes bullying and harassment, please see Employmentbuddy`s bullying and harassment factsheet.

Clarkslegal, specialist Employment lawyers in London, Reading and throughout the Thames Valley.
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