H Thomas v Tindall Riley & Co Ltd

A direct-discrimination claim under Equality Act 2010, section 13(1), requires the claimant to show treatment less favourable than that given, or that which would have been given, to a comparator. A claimant cannot meet that requirement by showing only that they believe they ought to have received a still more favourable package.

Where the claimant was offered a package worth more than the comparator’s remuneration, the employer’s separate recruitment-agency cost in engaging the comparator did not establish less favourable treatment of the claimant. The claim therefore had no reasonable prospect of success and was properly struck out.

The claimant brought claims of age and sex discrimination and victimisation in the Employment Tribunal. Most were struck out following a preliminary hearing before Employment Judge Nicolle; one separate direct-discrimination claim concerning a colleague’s comment remained.

This appeal concerned an age-discrimination allegation arising from the respondent’s appointment of Natasha Sutherland after the claimant had declined an offer comprising a £100,000 salary and a £10,000 sign-on bonus. Ms Sutherland received a £100,000 salary, while the respondent also paid a recruitment agency £15,000.

The claimant contended that the total recruitment cost showed that the respondent was willing to pay more for a younger and less experienced comparator. The central issue was whether those facts could amount to less favourable treatment of the claimant under section 13(1) of the Equality Act 2010.

1. Appeal dismissed. Employment Judge Nicolle made no error of law in striking out this aspect of the age-discrimination claim as having no reasonable prospect of success.

2. Section 13(1) of the Equality Act 2010 makes less favourable treatment an essential element of direct discrimination. The relevant comparison was between the treatment offered to the claimant and that afforded to Ms Sutherland.

3. On the claimant’s own case, she was offered a package worth £110,000, comprising a £100,000 salary and a £10,000 sign-on bonus. The comparator was offered a £100,000 salary. The additional £15,000 was paid to a recruitment agency, not to the comparator.

4. The claimant’s complaint was therefore not that she had received less favourable treatment than the comparator. It was that the respondent should have offered her a more favourable package reflecting the total cost it incurred in recruiting the comparator. That grievance could not satisfy the statutory requirement of less favourable treatment.

5. The judge accepted that discrimination claims are usually fact-sensitive and should only be struck out in clear cases. This was nevertheless such a case because the pleaded comparison could not establish a necessary element of the claim. The appeal was dismissed.

• Employment Appeal Tribunal: Dismissed the claimant’s appeal and upheld the Employment Tribunal’s strike-out of this age-discrimination allegation.
• Employment Tribunal: At a preliminary hearing on 24 April 2024, Employment Judge Nicolle struck out most age and sex discrimination and victimisation claims, including this age-discrimination claim, as having no reasonable prospect of success. One distinct direct-discrimination claim was allowed to continue.