REWARD INSIGHT
Comparators, addiction, trust
NicolaMullineux, senior employment specialist for Peninsula, reviews the decisions in three cases
Olalekan v Serco Ltd In this case, the employment appeal tribunal (EAT) ruled that a comparator in a direct discrimination claim could not necessarily be rendered unsuitable merely because a different decision-maker was involved. The case centred around a black prison custody officer (PCO) who was adjudged to have been involved in and ultimately dismissed following an alleged assault on a restrained prisoner. Olalekan appealed claiming the dismissal was unfair and discriminatory on the grounds of race as other white PCOs had not been dismissed for similar assaults. To support his claim, Olalekan provided a list of comparable white PCOs who had not been dismissed following accusations of assault, and three black PCOs who had. The director of the prison investigated the circumstances surrounding the other PCOs and determined that the circumstances in the aforementioned cases were materially different to that of the present case. He therefore upheld the decision to dismiss the employee, who later brought numerous claims to employment tribunal (ET), including unfair dismissal and direct race discrimination on the grounds that he had been treated
differently to a comparator i.e. the white PCOs who had not been dismissed. The ET dismissed the claims, stating that there was no evidence to support a claim for direct discrimination as there was nothing to suggest any PCO who acted in this manner would not have been dismissed, regardless of their race. This was because the director of prison had demonstrated that the white comparators who had not been dismissed were in a materially different position and their cases had all been dealt with on their own individual merits. The ET explained that ‘consistent evidence’ from the prison had brought them to the conclusion that any PCO who had committed a similar assault would have been dismissed regardless of their race. The employee appealed claiming that the ET had failed to look into all of the incidents where a white PCO had been treated more favourably and not dismissed. However, the EAT dismissed this appeal and explained that, in situations where the comparators’ circumstances are different, their situation can still be of evidential value but will ultimately be weakened by these material differences.
Interestingly, however, the EAT dismissed an argument from Serco Ltd and confirmed that the existence of a different decision-maker will not automatically lead to a conclusion that there is a material difference for the purpose of identifying a comparator. With this in mind, employers should ensure that all employees are treated equally when responding to incidents of misconduct. They should also keep in mind that employees seeking a claim for direct discrimination will need to demonstrate that a comparable employee, or hypothetical comparator in the same situation, would not have been subjected to the same detriment and that the reason for their detrimental treatment was their protected characteristic. Glassford v Royal Mail Group Limited This case saw the EAT tasked with ruling on whether dismissal for misconduct could be considered fair, despite further investigations not being held into the employee’s late claims of alcohol dependence. The employee, Glassford, had 23 years’ service with Royal Mail and had previously been placed on ‘suspended dismissal’ for two years following a disciplinary procedure after turning up to work under the influence of alcohol on three separate occasions. Whilst this suspended dismissal was still live the employee took an
...any PCO who had committed a similar assault would have been dismissed regardless of their race
| Professional in Payroll, Pensions and Reward | October 2019 | Issue 54 36
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