In this case, the EAT considered whether a tribunal had erred in its treatment of the comparators relied on in a claim for direct race discrimination.

The facts

A claimant in a direct discrimination claim must show that they have been treated less favourably than an actual or hypothetical comparator. The identity of the comparator is key, as the tribunal must compare like with like. There should be no material difference between the circumstances of the claimant and the comparator (apart from the protected characteristic itself).

The fact that a claimant has been treated less favourably than a comparator is not enough. The claimant must show that there was "something more" from which the tribunal could conclude that the difference in treatment was because of the claimant's protected characteristic. If the claimant can show facts from which the tribunal could conclude that discrimination occurred, it's up to the employer to provide an adequate non-discriminatory explanation for its actions.

Mrs George, who is black and of African descent, was employed by Croydon Health Services NHS Trust (the Trust) for 31 years until she retired in May 2013. Before her retirement, the Trust had to deal with several overlapping issues concerning Mrs George: her sickness absence, complaints by other midwives and doctors about her attitude, behaviour and communication, and whether she had taken appropriate action during a clinical incident.

In relation to the clinical incident, Ms George was suspended on full pay, and reported to the Local Supervising Authority (LSA), a statutory body which supervises professional standards for nurses and midwives. The LSA recommended that Mrs George undertake a period of supervised practice and that the matter be referred to the Nursing and Midwifery Council (NMC). The Trust also gave Mrs George a final written warning, to remain on file for 18 months, and referred the matter (as recommended by the LSA) to the NMC. As a result of the NMC's findings, Mrs George was demoted.

Mrs George was given a warning in relation to her sickness absence. She was invited to attend disciplinary hearings in relation to the complaints by other midwives and doctors. However, she went off on sickness absence, and did not return before her retirement.

Mrs George brought various claims against the Trust including direct race discrimination, relying on Ms Jarman as a comparator. Mrs Jarman is white, and was also a midwife at the Trust, at the same grade as Mrs George. She had failed to follow protocols, and as a consequence, a baby had died. She was given a final written warning for gross misconduct. However, she had not been referred to the LSA or the NMC and had not (as Mrs George had been) been required to undertake a six month period of management supervision. This was because she had advised the Trust that she was intending to retire in five months and could not bear to return to the labour ward. It was agreed she would work reduced hours in the antenatal clinic until her retirement, meeting with her line manager to ensure adequate supervision but not otherwise completing the period of management supervision.

The tribunal found that Mrs George had been directly discriminated against on grounds of race in respect of her referral to the LSA, her demotion and the Trust's persistence in pursuing the disciplinary and sickness review processes while she was off sick and due to retire. The Trust appealed.

The EAT decided that the tribunal had wrongly focused on the difference in treatment between Mrs George and her comparator, Ms Jarman, and insufficiently considered the reasons why the decision-maker acted as she did. The two had been treated differently, but there were possible non-discriminatory reasons for this which the tribunal should have considered. In particular, the decision maker for Mrs George, who had referred her to the LSA, had told the tribunal that she considered she was acting in accordance with NMC rules. The tribunal should have considered this as the reason for the difference in treatment.

The EAT also held that the tribunal had incorrectly proceeded on the basis that there were no material differences between the circumstances of Mrs George and Ms Jarman, and therefore that Ms Jarman was the correct comparator. The tribunal should have looked at potentially material differences between the circumstances of the two. These differences included that: the events relating to Ms Jarman occurred in 2008, while those regarding Mrs George occurred in 2012; different managers were involved in respect of the two incidents, and the tribunal should have considered the mental processes of the two decision makers; there were outstanding disciplinary complaints and proceedings against Mrs George and the ongoing sickness procedure; and the NMC had made an interim order against Mrs George but not against Ms Jarman (whose case had not been referred to the NMC).

What does this mean for employers?

This case shows how complex it can be for tribunals to identify the right comparator, whether actual or hypothetical, and how important it is to determine each of the relevant characteristics that must be shared by the comparators. Employers need to ensure, where possible, consistency of treatment between employees in similar circumstances and be in a position to justify any differences.

We understand that this decision has been appealed and is due to be heard by the Court of Appeal by 10 May 2017.

Croydon Health Services NHS Trust v George