The Power of the 'Hypothetical Comparator'

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21 March, 2019

Yara Cherbetji

The Employment Appeal Tribunal ("EAT") recently addressed the issue of hypothetical comparators in employment claims in Governing Body of Sutton Oak Church of England Primary School & 2 Others v. Mr M Whittaker.

The Respondent was a primary school teacher who was employed at the school since qualifying as a teacher in 2001. In 2002, conduct issues arose in respect of his relationship with a pupil. He had visited the child's home, offered him a "long ride in his car", had given him a birthday card and photograph and had been seen hugging and tickling him. The school decided that his conduct had been naïve and gave him a first written warning for inappropriate and unprofessional contact and involvement with a pupil, and issued conduct guidelines moving forward. The guidelines included that the Respondent would:

  • ensure that he was not left alone with a pupil except in an open area accessible to all;
  • ensure that any actions involving the pastoral care of pupils was discussed with the Deputy or Head Teacher;
  • have no physical contact with a child which may be misconstrued; and
  • have no contact with the parents or pupils outside school.

There were no further incidents over the course of the following years and he developed into a very good teacher. He had specifically been given classes which were difficult to deal with because he was seen to be good at dealing with behavioural issues.

In 2015, the Head Teacher saw the Respondent alone in a classroom with a pupil and saw him give the child a packet of Rolos. An investigation was instigated, and the school decided that the Respondent would be permitted to continue working whilst it was underway with conditions attached to comply with safeguarding concerns. The investigation found that the pupils in both incidents shared a similar profile and the school had identified both pupils as vulnerable due to their home situations. Whilst the investigation was ongoing, the Respondent contacted the pupil and he was subsequently suspended. On conclusion of the investigation, the Respondent was dismissed.

The Respondent brought claims of unfair dismissal and discrimination on the grounds of sexual orientation and disability (he is gay and HIV-positive) as well as claims of victimisation and harassment. As the school were unaware that the Respondent was HIV positive, the claim for disability discrimination failed. The claims of unfair dismissal and direct discrimination on the grounds of sexual orientation were upheld by the Tribunal. The School appealed against that decision on the basis that the Tribunal erred in law in its approach to the hypothetical comparator and/or that it reached a conclusion as to discrimination that was not supported by the facts.

The Tribunal found that a teacher who did not have the protected characteristic of the claimant would have been dealt with differently. It considered a hypothetical, heterosexual male teacher found alone with a male pupil and a hypothetical male teacher found alone with a female pupil would not have been dealt with in the same way. The Tribunal also found that the panel had allowed themselves to assume that there was a correlation between the claimant being gay and a paedophile.

The School appealed the decision. The EAT clarified that it is not always necessary to identify a hypothetical comparator at all. However, if a hypothetical comparator is an appropriate approach to take, then there should be no material difference between the circumstances of the comparator and those of the employee. Failure to ensure that this is so could mean that the comparative analysis is flawed. The Tribunal had not ascribed to the hypothetical heterosexual comparator any of the attributes of the Respondent other than meeting the child alone. The finding that there was discriminatory treatment on the grounds of sexuality was set aside and the matter was remitted to a differently constituted tribunal as the conclusions in respect of discrimination on the grounds of sexual orientation were seriously flawed.

For more information contact Yara Cherbetji in our Education department via email or phone on 0113 386 2697. Alternatively send any question through to Forbes Solicitors via our online Contact Form.

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