Sutton Oak Church of England v Primary School & Ors

For direct discrimination, a hypothetical comparator must have all circumstances material to the reason for the treatment, save for the protected characteristic. A tribunal may instead focus directly on why the claimant was treated as they were. However, if it adopts a comparator analysis, it must identify the comparator’s relevant attributes and comply with section 23 of the Equality Act 2010.

A finding that treatment was because of sexual orientation requires a clear evidential basis. The tribunal must identify the impugned treatment, the facts supporting the inference, and the motivation of the actual decision-makers.

The claimant, a gay primary-school teacher, was summarily dismissed after he was found alone with a male pupil during lunch, gave the pupil sweets, and was found to have acted contrary to guidelines issued following earlier concerns about his contact with a pupil. He brought claims including unfair dismissal and direct discrimination because of sexual orientation.

The Employment Tribunal upheld the unfair-dismissal claim and the direct-discrimination claim. It held that a heterosexual male teacher found alone with a female pupil would have been treated less severely, and inferred an assumed connection between the claimant’s sexuality and paedophilia.

The respondents appealed. The central issue was whether the Tribunal had lawfully constructed its hypothetical comparator and whether its finding of sexual-orientation discrimination had an evidential foundation.

1. Appeal allowed on the direct-discrimination issue. The Employment Tribunal’s finding of direct discrimination because of sexual orientation was set aside. The finding of unfair dismissal was not challenged and remained undisturbed.

2. Under sections 13 and 23 of the Equality Act 2010, a statutory hypothetical comparator must be in circumstances the same as, or not materially different from, those of the claimant apart from the protected characteristic. Although the Tribunal selected a heterosexual male teacher found alone with a female pupil, it did not attribute material features relevant to the treatment. Those included the earlier warning and guidelines, meetings alone with the pupil, gifts of sweets, and the claimant’s failure to discuss the asserted pastoral work with colleagues.

3. The Tribunal had also failed to identify clearly the treatment said to be discriminatory and the facts supporting its inference that sexuality was the reason. Its conclusion that the investigation and head teacher assumed a connection between homosexuality and paedophilia did not establish the motivations of the disciplinary and appeal panels, who were the relevant decision-makers.

4. The Tribunal had misquoted the investigation report by converting an observation that the conduct could be considered early-stage grooming into a statement that it was grooming. The actual wording was consistent with the safer-working guidance concerning gifts. There was no explained evidential basis for finding that the disciplinary panel was improperly influenced by that reference.

5. The sexual-orientation discrimination complaint was remitted to a differently constituted Employment Tribunal. Applying Sinclair Roche & Temperley v Heard, the discrimination conclusions were seriously flawed, the relevant factual findings were intertwined with unfair-dismissal findings, and the original Tribunal had reached firm unsupported conclusions on motivation. The fresh Tribunal could make any findings necessary, but had jurisdiction only over direct discrimination because of sexual orientation.

• Employment Appeal Tribunal: Allowed the respondents’ appeal against the finding of direct discrimination because of sexual orientation; set that finding aside and remitted that complaint to a differently constituted Tribunal.
• Employment Tribunal: Upheld claims for unfair dismissal and direct discrimination because of sexual orientation, but rejected the disability-discrimination, victimisation and harassment claims. No citation was stated.