F Laloui v Parks (London) Limited & Anor

An Employment Tribunal determining a direct discrimination claim must consider specifically identified evidential comparators where their treatment may bear on the reason for the treatment complained of. An evidential comparator need not satisfy the statutory comparator requirements to have evidential weight. An appellate tribunal, being removed from the evidence, should not treat the omission as harmless by assessing that weight for itself.

A tribunal is not, however, required to reconstruct an unclear case advanced by represented parties or to determine an unpleaded claim merely because it was referred to in closing submissions. The issues remitted were to be reconsidered by the original tribunal where practicable.

The Employment Tribunal dismissed the claimant's claims for sex discrimination, harassment, victimisation and unfair dismissal. She appealed.

The surviving appeal concerned direct discrimination allegations arising from a comment, furlough, an offer of a Commercial Director role, notice and dismissal. The claimant contended that the Tribunal had failed to consider named comparators identified in further information. She also alleged that the Tribunal had failed to address less favourable terms offered for the Commercial Director role compared with a male candidate.

The central issues were whether the omission to consider evidential comparators was an error of law, and whether the terms allegation formed part of the claim tried below.

1. Appeal allowed in part. The Tribunal erred in law by failing to consider the specific evidential comparators identified in the claimant's further information when deciding the direct discrimination allegations concerning issues 1(a), 1(k), 1(m), 1(n) and 1(o).
2. The Tribunal was not obliged to guess which comparators related to which allegations. The claimant had been legally represented, the list of issues was unclear, and the later material could not be used to criticise the Tribunal for failing to consider comparators first identified after its decision. There was no identified comparator for issue 1(l), concerning selection for redundancy.
3. Nevertheless, the Tribunal had been given specific evidential comparators for the successful allegations. Whether a proposed comparator was too remote, including because of self-employed contractor status, was a question for the Tribunal in the light of the evidence. The Appeal Tribunal could not safely decide that question itself. The resulting direct-discrimination conclusions were therefore unsafe.
4. The challenge to the terms of the Commercial Director offer failed. The claim presented below was that the offer was not genuine because the claimant could not accept it, having regard to remuneration, office attendance and working with Mr Symons. It was not a distinct claim that individual terms were less favourable within section 13 of the Equality Act 2010. Passing references in closing submissions, without amendment or a clear indication that the case had changed, did not require the Tribunal to determine that different claim.
5. The other findings, including on credibility, harassment and victimisation, remained undisturbed. The matter was remitted to the original Employment Tribunal, if practicable, to reconsider the specified direct-discrimination claims in light of the evidential comparators and, if necessary, the effect on the fairness of dismissal.

• Employment Appeal Tribunal: Allowed the appeal on limited grounds and remitted the specified direct-discrimination issues to the original Employment Tribunal, if practicable.
• Employment Tribunal, London Central: In a reserved judgment sent on 6 September 2022, dismissed claims for sex discrimination, harassment, victimisation and unfair dismissal.