Olalekan v Serco Ltd

Actual comparators who are materially different from the claimant cannot satisfy the statutory comparison requirement. They may nevertheless have evidential value, although that value will usually be weak where the material differences are clear and unchallenged.

An Employment Tribunal is not required to construct a hypothetical comparator from such cases. It may instead compare the claimant with a person outside the protected group who committed the same misconduct. A difference in the identity of the decision-maker does not, without more, make a comparator materially different.

In an unfair-dismissal appeal, a manager need not conduct a full rehearing or investigate every new point. A reasonably limited investigation may fall within the range of reasonable responses. Disparity arguments ordinarily require other cases that are truly similar.

The claimant, a black prison custody officer, was summarily dismissed after the Employment Tribunal found that he struck a restrained and compliant prisoner three times. He brought claims for unfair dismissal and direct race discrimination. He relied on white prison custody officers whom he said had been treated more favourably after using force against prisoners.

The Employment Tribunal dismissed both claims. It found that the proposed actual comparators were materially different and that a white officer who committed the same offence would also have been dismissed. It also held that the internal appeal was fair.

The claimant appealed to the Employment Appeal Tribunal. The central issues were whether the Tribunal should have constructed a hypothetical comparator from the other cases, and whether the restricted investigation undertaken on the internal appeal made the dismissal unfair.

1. Appeal dismissed. The Employment Tribunal made no error of law in rejecting the direct race-discrimination claim. Although materially different actual comparators can sometimes provide evidential material, their value is reduced by those differences. Here, the respondent’s evidence that the proposed comparators were materially different was clear, credible and unchallenged.

2. The Tribunal was not obliged to make findings on every proposed comparator or to build a hypothetical comparator from them. It was entitled to compare the claimant with a white prison custody officer who had committed the same assault on a restrained prisoner. That comparator met the minimum requirements for the comparison, and evidence supported the finding that such an officer would also have been summarily dismissed.

3. The claimant’s professionally represented failure to challenge the asserted similarities with the comparator cases was material. The decision in King, concerning a litigant in person, did not assist him. Nor was the Tribunal required to treat the claimant’s mitigation case as demonstrating less favourable treatment, since there was no evidence that equivalent inadequate mitigation from white officers had been accepted.

4. The identity of a different decision-maker does not alone make an otherwise suitable comparator materially different. It may do so where the decision-makers operated under materially different policies or circumstances. The focus remains upon the motivation of the decision-maker who dealt with the claimant.

5. The Tribunal was entitled to find the dismissal appeal fair. The appeal manager was reviewing, rather than rehearing, the disciplinary decision. His agreed and rational limitation of the comparator investigation was within the range of reasonable responses. Finally, the alleged disparity did not render the dismissal unfair because the other cases were not truly similar.

• Employment Appeal Tribunal: Appeal dismissed; the Employment Tribunal’s dismissal of the unfair-dismissal and direct race-discrimination claims was upheld.
• Employment Tribunal: Dismissed the claims for unfair dismissal and race discrimination. No citation for its judgment was stated.