Dr Nicholas Jones v The Secretary of State for Health and Social Care

In a recruitment discrimination claim, the comparative exercise must reflect the identified treatment and the employer’s actual decision-making process. Where qualifications and experience were relevant only at a preliminary sift, they may be immaterial to comparison of a later interview decision. However, a candidate who passed the sift may still be an actual or evidential comparator at interview. The tribunal must compare the candidates’ scoring against the interview matrix where that comparison may supply evidence of discrimination.

A claimant may also establish detriment at the sift if a comparator was favoured because of race and would otherwise not have progressed to the later stage. Sections 13, 23 and 136 of the Equality Act 2010 require a coherent comparison; a tribunal cannot exclude a comparator for differences which its own findings treat as irrelevant to the impugned decision.

The claimant, an African-Caribbean applicant, alleged direct race discrimination after he was not appointed to an Assistant Business Development Manager role. He passed an initial sift and ranked second in the interview. The successful candidate, Candidate B, was white.

The Employment Tribunal dismissed the claim, holding that the sift and interview were separate processes. It treated Candidate B as an unsuitable comparator because of differences in qualifications, experience and interview performance, and rejected a comparison of the candidates’ interview scores.

The Employment Appeal Tribunal had initially dismissed the claimant’s appeal on limitation. The Court of Appeal allowed an appeal on that issue, substituted an extension of time, and remitted the merits grounds to the EAT. The issue was whether the Employment Tribunal had lawfully conducted the comparative exercise required for direct discrimination.

1. Appeal allowed. The complaint was remitted to a differently constituted Employment Tribunal for full redetermination.

2. The Employment Tribunal was entitled, in principle, to find that the stage 1 sift and stage 2 interview were separate. Where an employer genuinely uses the sift only to determine whether applicants meet threshold qualifications and experience, and makes the later appointment solely by interview performance, superior qualifications or experience are generally irrelevant to comparison of the later interview decision.

3. That conclusion made the Employment Tribunal’s comparator analysis irrational. It had found that candidates began the interview with a clean sheet and that qualifications and experience were not considered at that stage. Those matters could not then be material differences preventing Candidate B from being an actual comparator for the stage 2 decision. The tribunal also failed to consider whether he was an evidential comparator.

4. The tribunal should have considered, excluding matters confined to the sift, whether Candidate B was an actual or evidential comparator. If he was, it was relevant to compare each candidate’s scoring against the interview matrix. The employer’s practice of scoring candidates separately did not make that comparative evidence irrelevant; it could have provided substantial evidence bearing on discrimination and on the hypothetical-comparator analysis.

5. The stage 1 analysis also could not stand. Even though both candidates progressed, the claimant could suffer detriment if Candidate B was treated more favourably because of race and would not otherwise have passed the sift. In that event the claimant, who ranked second at interview, would have obtained the appointment. The Employment Tribunal’s material factual error in describing Candidate B as a rehabilitation manager, rather than a Rehabilitation Assistant Practitioner, also required reconsideration. Any finding of discrimination at interview could be relevant to the sift because the same persons conducted both stages.

6. Applying Sinclair Roche & Temperley v Heard, remission was to a different tribunal. The original decision was fundamentally flawed and rehearing before the same tribunal would not materially save expense.

• Employment Appeal Tribunal: this appeal was allowed and the complaint remitted to a differently constituted Employment Tribunal: [2025] EAT 76.

• Court of Appeal: allowed the claimant’s appeal against the EAT’s first decision on limitation, substituted a just and equitable extension of time, and remitted the merits grounds to the EAT. No citation is stated in the judgment.

• Employment Appeal Tribunal: initially dismissed the appeal after upholding the Employment Tribunal’s refusal to extend time: [2024] EAT 2; [2024] IRLR 275.

• Employment Tribunal, Reading: dismissed the direct race discrimination claim on the merits and held it was out of time. Judgment sent on 22 January 2022; written reasons provided on 22 April 2022.