Ladbrokes Betting & Gaming Limited v Wahida Omi

For direct discrimination, the material circumstances of an actual comparator depend on the particular treatment alleged. A tribunal may find that differences in availability are immaterial where suitable work was available to both employees. It need not compare the precise shifts worked by each employee.

An actual comparator may also supply evidence of how a hypothetical non-disabled employee would have been treated. A tribunal may take account of other employees’ treatment when deciding whether to infer discrimination.

In constructive-dismissal cases, affirmation requires conduct communicating an election to continue the contract. Delay alone is insufficient. Sickness absence, pursuit of a grievance or conciliation, and bringing proceedings may be inconsistent with affirmation in their context.

The claimant, who had Conns Syndrome, was employed on a 17-hour contract after previously working 30 hours. She sought additional contractual hours at Watling Street. The Employment Tribunal found that the employer increased Tejas’s hours to 30 per week without considering the claimant, because her disability-related restrictions were treated as inflexibility. It upheld direct disability discrimination and constructive unfair dismissal.

The employer appealed the Tribunal’s comparator analysis, its reliance on other employees’ treatment, and its failure expressly to address affirmation before the claimant resigned. The central issues were whether Tejas was a lawful actual comparator and whether the claimant had affirmed the contract.

1. Appeal dismissed. The Employment Tribunal made no error of law in finding direct disability discrimination and constructive unfair dismissal.
2. The relevant treatment was the failure to increase the claimant’s contractual hours from 17 to 30 when Tejas’s were increased on 16 June 2022. The Tribunal was entitled to identify as material circumstances that both sought increased hours and that suitable shifts were available. It was unnecessary to require that the claimant could work the same additional shifts as Tejas. Her inability to work early shifts was immaterial because the Tribunal found suitable non-early shifts at Watling Street. Its factual rejection of the assertion that she had confined herself to Monday–Wednesday working was plainly open to it.
3. Tejas was therefore permissibly treated as an actual comparator under section 23. Alternatively, his treatment was evidentially relevant to the hypothetical-comparator inquiry: the Tribunal’s unchallenged finding was that a non-disabled employee seeking the same additional hours would probably have been told of them. The Tribunal could also consider allocation of shifts to other employees as evidential comparison when inferring discrimination.
4. The written decision omitted an express determination of affirmation, but the issue could be determined on appeal by agreement. The claimant discovered the comparator’s increased hours in late July, was absent with significant depression from 1 August, began ACAS conciliation on 9 August, issued proceedings on 20 October and resigned on 28 November. Those facts admitted only the conclusion that she had not affirmed the contract by delay. The employer ultimately could not rely on acceptance of sick pay as an unpleaded basis for affirmation.

• Employment Appeal Tribunal: appeal dismissed: [2025] EAT 99.
• Employment Tribunal (London Central): Employment Judge Emery, sitting with members, upheld direct disability discrimination and constructive unfair dismissal. Judgment sent on 20 October 2023.