Croydon Health Services NHS Trust v George

For direct discrimination, any actual comparator and the hypothetical comparator constructed from evidential comparators must involve a like-for-like comparison. A tribunal must address material differences in circumstances and engage with the employer's explanation, including the relevant decision-maker's reasoning. A finding of an extreme difference in treatment cannot safely stand where those matters have not been addressed.

For harassment, the tribunal must assess objectively whether it was reasonable for the unwanted conduct to have the alleged effect, having regard to the complainant's perception and all the surrounding circumstances. A pay reduction is an unauthorised deduction where the contractual provision relied upon does not cover the employee's circumstances.

The Claimant, a black nurse and midwife, retired after concerns about her professional conduct, sickness absence and restrictions imposed on her practice. The Employment Tribunal upheld claims of direct race discrimination concerning a referral to the Local Supervising Authority and post-resignation treatment, race-related harassment, and unauthorised deductions following her demotion from Band 7 to Band 2. It rejected her constructive dismissal claim.

The Respondent appealed the discrimination, harassment and wages rulings. The Claimant cross-appealed the finding that she had not resigned in response to a repudiatory breach. The central issues were whether the Tribunal had made valid comparisons and applied the burden of proof correctly, whether the demotion was contractually authorised, and whether the constructive-dismissal finding could stand.

1. Appeal allowed in part; cross-appeal dismissed. The findings of direct race discrimination and harassment were unsafe and were remitted for rehearing before a differently constituted Employment Tribunal.

2. On the referral to the Local Supervising Authority, the Tribunal was entitled to treat the former employee as a possible comparator. It had, however, failed to address material differences, including the different managers and the possible relevance of applicable professional rules at different times. It also failed to engage with the evidence of the decision-maker who referred the Claimant. The Tribunal therefore did not adequately consider the reason for the treatment or explain its assumption that the former employee had not been referred.

3. On the post-resignation complaints, the former employee could provide evidence for constructing a hypothetical comparator. That comparison nevertheless had to eliminate material differences. The Tribunal did not address the Claimant's outstanding disciplinary and sickness procedures, or the restrictions imposed by the professional regulator. It also treated the complaints together rather than ensuring a like-for-like comparison for each alleged act. Its findings of direct discrimination could not stand.

4. The harassment finding depended on the discrimination findings and was consequently set aside. In any event, the Tribunal needed to assess objectively whether the alleged conduct reasonably had the statutory effect, taking account of the wider circumstances, including the regulatory order.

5. The deduction-of-wages finding was upheld. The contractual policy applied to a lapsed registration. It did not extend to a registration said to have lapsed only “in substance” because of conditions of practice. The demotion and resulting reduction in pay therefore lacked contractual authority.

6. The cross-appeal failed because the Tribunal had permissibly found that the Claimant did not resign in response to any breach of contract. That dispositive finding was not challenged by the cross-appeal.

• Employment Appeal Tribunal: Allowed the Respondent's appeal concerning direct race discrimination and harassment, upheld the unauthorised-deduction ruling, dismissed the Claimant's cross-appeal, and remitted the discrimination and harassment claims to a differently constituted tribunal.
• London (South) Employment Tribunal: Judgment sent on 9 February 2015. It upheld claims of direct race discrimination, race-related harassment and unauthorised deductions, but rejected constructive dismissal.