Neelam Lal v Driving & Vehicle Standards Agency

In a direct discrimination claim, the claimant must identify the actual or hypothetical comparator relied upon in the pleaded case. A tribunal is not required, after the evidence has closed, to consider different comparators which were not identified so as to give the respondent fair notice of the case to meet.

A tribunal may first determine the employer’s reason for the treatment. A finding that dismissal was solely because of conduct, rather than a protected characteristic or protected act, defeats the relevant discrimination and victimisation complaints. On unfair dismissal, disparity of sanction arises only where the circumstances of the employees are materially comparable. The Employment Appeal Tribunal will not retry factual issues or substitute its assessment for that of the tribunal absent an error of law or perversity.

The appellant, a driving examiner, was summarily dismissed on 8 November 2018 following disciplinary proceedings. She brought complaints of direct race and disability discrimination, victimisation and unfair dismissal.

After a multi-day hearing, the Employment Tribunal at Watford dismissed all complaints in reasons dated 9 November 2023. The appellant pursued eleven grounds of appeal, challenging the treatment of comparators, victimisation findings, the fairness and adequacy of the dismissal process, the reason for dismissal, and the adequacy of the Tribunal’s reasons.

The central issue was whether those challenges disclosed an error of law rather than disagreement with findings of fact open to the Employment Tribunal.

1. Appeal dismissed. None of the eleven grounds disclosed an error of law. The Employment Tribunal made findings open to it, correctly directed itself on the applicable law, and gave reasons compliant with Meek.

2. For direct discrimination under Equality Act 2010, section 13, the appellant had identified only Mrs Vear-Altog as an actual comparator and as the evidential basis for a hypothetical comparator. The Tribunal was neither required nor permitted, consistently with procedural fairness, to consider unpleaded alternative comparators after the evidence had been heard. Mrs Vear-Altog was in any event not in materially similar circumstances: the allegation against her was an accidental data breach, whereas the allegations against the appellant also concerned conduct intended to undermine workplace relationships.

3. The Tribunal was entitled to decide first why the appellant had been dismissed. It found a composite reason: the decision-maker believed that she had committed a data breach and had sought to undermine relationships in the office. That finding established that dismissal was because of conduct, not race or disability.

4. The victimisation grounds failed. The statements focused solely on data protection were not protected acts under section 27. Although the 2010 tribunal proceedings were a protected act, the Tribunal was entitled to find either that alleged detriments had not occurred or that there was no causal connection between them and that protected act. Its reasons adequately addressed the grievance, suspension, disciplinary process and dismissal.

5. The unfair-dismissal grounds were disagreements with fact and evaluation. No relevant disparity of sanction arose because the relied-on employees were not materially comparable. The Tribunal was entitled to find that the appellant had fair notice of the allegations through the investigation reports and disciplinary invitation, and that the investigation fell within the band of reasonable investigations. No perversity threshold was met.

• Employment Appeal Tribunal: Appeal dismissed in [2025] EAT 106.
• Employment Tribunal, Watford: Following a multi-day hearing in September and October 2023, dismissed the complaints of direct race and disability discrimination, victimisation and unfair dismissal in reasons dated 9 November 2023.