Virgin Active Limited v C Hughes

For a direct discrimination claim based on comparators, an Employment Tribunal must address whether there are material differences in circumstances under section 23 of the Equality Act 2010. It must identify whether a person is an actual comparator or is evidence relevant to a hypothetical comparator. A difference in protected characteristic and treatment alone does not ordinarily shift the burden of proof.

A worker’s reasonable belief that a disclosure is in the public interest need not be the worker’s motive for making it. Delay in promulgating a tribunal judgment warrants interference only where it creates a real risk that the party was deprived of the substance of a fair trial.

The claimant, a white club manager, succeeded before the Employment Tribunal in claims for automatic unfair dismissal for making protected disclosures, ordinary unfair dismissal and direct race discrimination. The tribunal found that the respondent had dismissed him after discovering that he had reported threats to the police, and that its disciplinary and grievance processes had been discriminatory.

The respondent appealed. It challenged the tribunal’s approach to comparators and the burden of proof in the race discrimination claim, its findings on protected disclosures, alleged perversity, and the lengthy delay in producing the judgment. The central issues were whether the tribunal had applied the correct discrimination and whistleblowing tests, and whether the delay rendered the hearing unfair.

1. Appeal allowed in part. The findings of direct race discrimination were set aside and those claims were remitted for rehearing before a differently constituted Employment Tribunal, if necessary.

2. The tribunal erred in its race-discrimination analysis. Direct discrimination requires a comparative exercise under sections 13 and 23 of the Equality Act 2010. Where treatment of others is relied upon, the tribunal must decide whether they are actual comparators, with no material difference in circumstances, or whether their treatment is merely evidence capable of supporting an inference about a hypothetical comparator.

   The tribunal had treated the claimant’s colleagues as actual comparators and shifted the burden of proof on the basis of differential treatment, without analysing material differences. The alleged racist comments and the circumstances in which they were made were, on their face, materially different. That legal error required the race findings to be set aside.

3. The protected-disclosure ground failed. The tribunal had made findings open to it that the claimant genuinely and reasonably believed that disclosures concerning threats to safety and direct-debit fraud were in the public interest and tended to show criminality or danger to health and safety. A disclosure can qualify even if the worker was also motivated by disciplinary proceedings. The tribunal was not required to address every submission expressly and was entitled to find that the protected disclosure was the reason, or principal reason, for dismissal.

4. The perversity challenge failed. The tribunal was entitled to give substantial weight to covert recordings. Its isolated mistaken reference to the appeal officer having been cross-examined was a minor error and did not undermine its findings.

5. The delay ground also failed. Applying Connex South Eastern Ltd v Bangs, delay does not itself make a decision unsafe. The question is whether it created a real risk of deprivation of the substance of a fair trial. The tribunal had notes, bundles, deliberation records and lay-member material. The respondent had not established such a risk.

• Employment Appeal Tribunal: Allowed the appeal against the direct race discrimination findings, set them aside and remitted those claims for rehearing. Dismissed the appeal against the protected-disclosure and unfair-dismissal determinations and the delay and perversity grounds: [2023] EAT 130.
• Employment Tribunal: Upheld claims of direct race discrimination, ordinary unfair dismissal and automatic unfair dismissal for protected disclosures. It dismissed claims of age and sex discrimination.