Wyc Shing v University of the Arts London

Where a claimant’s race discrimination case rests on actual comparators whom the tribunal finds materially different and evidentially unhelpful, and there is no evidence that race affected the decision, the tribunal need not construct a hypothetical comparator if doing so would be an empty and arid exercise. HR involvement does not of itself make a dismissal unfair. Undue pressure on the decision-maker by HR or another person outside the proper process may be weighed in the fairness assessment, with its significance depending on the circumstances. HR may advise on law, procedure and consistent application of misconduct standards.

Mr Shing, a Chinese Senior Lecturer at the University of the Arts London, was summarily dismissed after an inappropriate relationship with a student. His race discrimination claim relied on two colleagues, G and H, whom he said had been treated more leniently for similar misconduct. The Employment Tribunal found their circumstances materially different and found no evidence that race influenced the decision-makers. Mr Shing also challenged the fairness of his dismissal, arguing that the tribunal had misunderstood the limits on HR involvement described in Ramphal v Dept of Transport. He appealed the tribunal’s findings on comparators, hypothetical comparators, HR involvement and the reasons for dismissal.

1. Appeal dismissed. The tribunal was entitled to find that G and H were not statutory comparators and did not assist as evidential comparators. Equality Act 2010 s23 requires no material difference in circumstances for a statutory comparator. The tribunal found material differences in the seriousness of the conduct and, for H, his contrition and disciplinary record. Those were factual findings with which the EAT would not interfere absent perversity.

2. The tribunal was not required to construct a hypothetical comparator. Mr Shing’s case depended on comparison with G and H; the tribunal found those comparisons unhelpful and there was no evidence that race formed any part of the reason for dismissal. A hypothetical comparator would have been Mr Shing in different racial circumstances, and constructing one would have been an empty and arid exercise. The EAT also relied on Bahl v Law Society, which rejected the contention that it is always an error of law to omit a hypothetical comparator or to decide less favourable treatment before asking why the claimant was treated as they were.

3. The tribunal could, in principle, focus on the reason why the claimant was treated in a particular way instead of relying on comparators, as recognised in Shamoon v Chief Constable of the Royal Ulster Constabulary. That route did not provide an alternative basis here: race was conceded not to have operated on the decision-makers’ minds, and the claim was based on comparison with G and H.

4. On HR involvement, the ratio of Ramphal v Dept of Transport was that undue pressure by HR or another person outside the proper process may be weighed as a factor in determining fairness under s98(4) of the Employment Rights Act 1996. Its weight depends on the facts. The guidance in Ramphal about HR’s involvement had to be read in the context of that case; it was not a comprehensive prohibition on HR advising about culpability or appropriate action. Chhabra v West London Mental Health NHS Trust concerned a particular contractual disciplinary process and did not establish a universal rule for all dismissals.

5. The tribunal found no improper pressure here. The HR employee drafted a letter only after the decision-maker had decided to dismiss; the decision-maker made the decision and it was later ratified. The tribunal was guided by Ramphal’s ratio. The EAT also found no error in the tribunal’s reconstruction of the deceased decision-maker’s reasoning or its treatment of the subsidiary burden-of-proof point. Applying DPP v Greenberg, the EAT would be slow to find misapplication where the tribunal had correctly stated the principles unless its language showed that it had applied a different one.

1. Employment Appeal Tribunal: Appeal dismissed.
2. Employment Tribunal: Found for the respondent on the claims challenged in the appeal. A citation for the tribunal decision is not stated in the judgment.