D Martin v The Board of Governors of St Francis Xavier 6th Form College

For direct discrimination, a statutory comparator must be in circumstances which are not materially different from those of the claimant. Whether a difference is material depends on the particular treatment alleged. A real person who is not a statutory comparator may nevertheless be an evidential comparator, and comparators are evidence bearing on the ultimate reason for treatment rather than an end in themselves.

An actual comparator treated differently may make it more likely that the burden under section 136 will shift, but does not automatically do so. An appellate tribunal will not disturb fact-sensitive comparator findings absent perversity or inadequate reasons. Procedural imperfections in a disciplinary process do not necessarily amount to a repudiatory breach of mutual trust and confidence.

The claimant, a black British teacher, resigned during disciplinary proceedings concerning lateness and brought claims of direct race discrimination and constructive unfair dismissal.

The Employment Tribunal, by a majority, rejected the claims. It found that a white employee, Mr White, was an actual comparator who underwent substantially the same disciplinary process and would have received the same oral warning. The Tribunal found that two other proposed comparators were materially different. A minority member would have upheld the race discrimination claim.

The claimant appealed, alleging legal error concerning actual, evidential and hypothetical comparators, the burden of proof, safeguards, reasons, factual findings and constructive dismissal.

1. Appeal dismissed. The Employment Tribunal majority had not misdirected itself, reached perverse conclusions, or given inadequate reasons.
2. Under Equality Act 2010, section 23, materiality is assessed by reference to the treatment of which the claimant complains. The relevant treatment was the investigation, formal disciplinary process and hearing for lateness or absence. It was open to the Tribunal to find that Mr White's more detailed alleged misconduct did not create a material difference for those purposes. Both employees were suspected of a pattern of breach of the absence procedure and were subjected to the same process. Mr White was therefore an actual comparator and, alternatively, an evidential comparator.
3. Mr Spindler and Mr McQuitty were not statutory comparators. Neither had a suspected pattern of lateness. Mr McQuitty's lateness emerged only months later. Mr Spindler had not been late and had a distinct explanation for the treatment he received.
4. Comparators are evidential tools, not a mandatory sequence of separate inquiries. Having found a real statutory comparator treated the same way, the Tribunal was not required to conduct a separate hypothetical-comparator exercise. Nor did the finding of an actual comparator automatically shift the burden under section 136.
5. The College's safeguarding evidence explained why teacher lateness could properly be treated seriously. It was not an unpleaded alternative justification requiring exclusion.
6. The Tribunal was entitled to find that the undisclosed gate data and omission of an oral warning from the invitation letter were procedural flaws but not conduct calculated or likely to destroy, or seriously damage, trust and confidence. There was no repudiatory breach and therefore no constructive dismissal.

• Employment Appeal Tribunal: appeal dismissed: [2024] EAT 22.
• Employment Tribunal (London South): majority dismissed claims for direct race discrimination and constructive unfair dismissal on 24 September 2021. The EAT upheld that decision.