In Croydon Health Services NHS Trust -v- George UKEAT/0139/15 the Employment Appeal Tribunal (EAT) allowed an employer’s appeal against a decision that it racially discriminated against an employee, on the basis that the tribunal failed to identify the correct comparator.

The law

Pursuant to section 13(1) of the Equality Act 2010, direct discrimination happens when, ‘because of a protected characteristic, A treats B less favourably than A treats or would treat others’.

An employee must therefore show they have been treated less favourably than someone else (i.e. a comparator). The comparator may be actual or hypothetical, but in either case their circumstances must be the same in all material respects as the employee’s save for the protected characteristic. A comparator whose circumstances are not the same in all respects may still be considered by a tribunal as evidence of how the employer would treat a hypothetical comparator.

If the employee establishes they have been treated less favourably than an actual or hypothetical comparator, it then becomes the employer’s burden of proof to demonstrate a non-discriminatory reason for its actions.

The facts

Mrs George had been employed by Croydon Health Services NHS Trust (the Trust) as a midwife since 2005.

An incident in 2012 led the Trust to investigate the standard of care Mrs George had provided to a patient. As a result, Mrs George was suspended on full pay and the incident was reported to the Local Supervising Authority (LSA), which supervises professional standards for nurses and midwives. The LSA investigated the matter and recommended the case be referred to the Nursing and Midwifery Council (NMC) and that Mrs George undergo a period of supervision. The NMC eventually imposed conditions of practice on Mrs George for an 18-month period.

The Trust instigated disciplinary proceedings against Mrs George in relation to the incident and issued a final written warning that was to remain on her file for 18 months. At around the same time, Mrs George was given a separate warning for her poor attendance.

In January 2013 Mrs George was asked to attend a further disciplinary hearing to answer allegations raised by her colleagues in relation to her attitude and behaviour. A disciplinary hearing was scheduled to take place on 28 February 2013, however Mrs George was signed off sick due to work-related stress and therefore didn’t attend. Having by that time received the NMC’s decision in relation to the incident with the patient, the Trust wrote to Mrs George to inform her she was being demoted from band 7 to band 2.

In February 2013 Mrs George requested special class retirement with effect from May 2013, which was granted.

Despite the Trust’s efforts to reschedule the disciplinary hearing to deal with the complaints from her colleagues, Mrs George remained unfit to attend a meeting and she ultimately retired on 21 May 2013.

Mrs George’s employment tribunal claim

Mrs George claimed the Trust had subjected her to direct race discrimination. Mrs George cited her colleague Mrs Jarman as her comparator. Mrs Jarman is a white band 7 midwife at the Trust who was given a final written warning for gross misconduct after her failure to follow standard protocol during a home birth led to the baby’s death. Mrs George alleged Mrs Jarman had not been referred to the LSA or NMC by the Trust, nor was she required to undertake a period of supervision. The reason for this was that Mrs Jarman had asked not to return to the labour ward after the incident and, as she was due to retire in five months, spent her remaining time in the antenatal clinic and therefore did not require the same level of supervision.

The tribunal held the Trust had directly discriminated against Mrs George on grounds of her race. It accepted Mrs Jarman as Mrs George’s comparator, finding that the only material difference in the two women’s circumstances was that Mrs Jarman’s actions had led to the death of an infant, whereas Mrs George’s actions had not.

The tribunal based its decision on the following findings about the two women’s treatment:-

  • Mrs George was referred to the LSA, whereas Mrs Jarman was not.
  • Mrs George was referred to the NMC, whereas Mrs Jarman was not.
  • Mrs George did not receive the same consideration and sympathy Mrs Jarman received, i.e. Mrs George was demoted without warning and pressured to attend further disciplinary meetings while absent due to sickness, even though she had given notice of her intention to retire.

The tribunal accepted Mrs Jarman could not be an actual comparator in relation to the Trust’s conduct after Mrs George had given notice of her retirement, but it considered her treatment provided evidence of how a hypothetical comparator would have been treated.

EAT’s decision

The EAT allowed the Trust’s appeal on the basis that the tribunal was wrong to decide there were no material differences between Mrs Jarman and Mrs George’s circumstances, aside from the consequences of their actions. The EAT highlighted the following potential material differences:-

  • Mrs Jarman’s case happened four years before Mrs George’s and were dealt with by different managers
  • There were outstanding disciplinary complaints against Mrs George but not Mrs Jarman
  • There was an on-going sickness process in Mrs George’s case
  • The NMC made an interim order in Mrs George’s case

The EAT also felt the tribunal had given insufficient consideration to the reasons why the decision-makers in Mrs Jarman and Mrs George’s cases had taken the decisions they did. For example, in Mrs George’s case the Trust believed they were bound by the rules of the NMC to act as they did, however no enquiry was made as to whether those rules applied in Mrs Jarman’s case. With regard to the use of Mrs Jarman as evidence of how the Trust would treat a hypothetical comparator, the EAT held that the tribunal had failed to observe the differences between Mrs Jarman and Mrs George’s cases and simply broadly compared the treatment of two women in the months preceding their retirement.

The case has been remitted to the tribunal to be reheard. It is also listed for hearing with the Court of Appeal in 2017.

What this means for employers…

This case serves as a reminder about how complicated the issue of comparators in discrimination claims can be. It also emphasises the importance of being able to demonstrate your non-discriminatory decision-making process when taking any action in relation to an employee. Even if an employee is able to show they were less favourably treated than an actual or hypothetical comparator, if the employer can produce evidence that the reasons for its actions were not connected to a protected characteristic, the claim will fail.