Neutral Citation Number: [2025] EAT 76
Case No: EA-2022-000744-JOJ
EMPLOYMENT APPEAL TRIBUNAL
Rolls Building
Fetter Lane, London, EC4A 1NL
Date: 4 June 2025
Before:
HIS HONOUR JUDGE JAMES TAYLER
EMMA LENEHAN
CHARLES EDWARD LORD OBE
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Between:
DR NICHOLAS JONES
Appellant
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THE SECRETARY OF STATE FOR HEALTH AND SOCIAL CARE
Respondent
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JEFFREY JUPP KC (instructed through the auspices of Advocate) for the Appellant
MARIANNE TUTIN (instructed by Government Legal Department) for the Respondent
Hearing date:4 January 2024
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JUDGMENT ON REMISSION FROM COURT OF APPEAL
SUMMARY
RACE DISCRIMINATION
The Employment Tribunal erred in its analysis of a complaint of direct discrimination in a recruitment exercise. The necessary comparative exercise considered.
HIS HONOUR JUDGE JAMES TAYLER, EMMA LENEHAN, CHARLES EDWARD LORD OBE:
The proceedings in the Employment Tribunal
The Employment Tribunal hearing
The first decision of the EAT
Appeal to the Court of Appeal
Barnes v Metropolitan Police Commissioner is a 2005 decision of the EAT which remains unreported to this day and is not even referred to in the current version of Harvey. This suggests that [19] of the judgment does not lay down a formula. But to the extent that it does I cannot agree with it. In many cases involving the 'just and equitable' discretion it will be highly relevant if the Claimant knew all the facts necessary to establish a discrimination claim but then failed without good reason to act promptly. I am much less persuaded that suspicion, or a firmly held belief based on suspicion, is a relevant factor. Until 2014 the statutory questionnaire procedure enabled prospective Claimants for discrimination to ask questions, with failure to answer them giving rise to the possibility of adverse inferences. That procedure is no longer available. Promptness in bringing ET claims remain important but this court, the EAT and ETs should not encourage cases to be brought on mere suspicion.
100 I can deal with the last point first. The discretion under s 123(1)(b) is indeed very wide, but where a claimant is asking for an extension of time on the basis that the they were unaware of important facts material to the viability of their claim it is necessary for the tribunal to consider what the extent of their knowledge (or grounds for suspicion) was, in order to be able to assess what justice and equity require. The EAT's criticism of the Judge's reasoning in this case relates to his factual findings on that question rather than to his exercise of any discretion based on them.
101 As to whether suspicion, as opposed to knowledge, of the facts which would found a valid claim is sufficient when considering whether a claimant reasonably could or should have brought proceedings sooner, I do not think that this can be a black-or-white question. There is a broad spectrum between certain knowledge, which is obviously sufficient, and mere speculation, which is obviously not; and 'suspicion' is an imprecise term which may connote a point anywhere on that spectrum. Clearly it will often be reasonable to expect a person to bring proceedings where their knowledge of the facts material to the prospects of success, or of the availability of the evidence necessary to prove those facts, is less than certain. Whether that is so in any given case depends on the particular circumstances, including, but not limited to, the degree of the uncertainty in question.
102 I would add - though the point is not central to the issue before us - that I agree with Judge Richardson at para 19 of his judgment in Barnes (see para 98 above) that, while the question of whether the claimant knew/suspected that they had a valid claim is always relevant, that is only the starting-point of the enquiry. As he says, it may also be relevant to consider whether, if they did not know or suspect it, they should have done; and, if they did, whether it was nevertheless reasonable of them to delay bringing proceedings. And, as he also says, those may not be the only questions relevant to the overall assessment of what justice and equity require.
47 In those circumstances I consider that the ET's reasoning on the 'just and equitable' issue was erroneous, and that their conclusion lay outside the very wide ambit within which different views may reasonably be taken about what is just and equitable. I am therefore satisfied that the Claimant has surmounted the high threshold for establishing that the ET's decision that it would not have been just and equitable to extend time was perverse, and the order of the EAT upholding that decision, should be set aside.
48 We were told that the grounds of appeal to the EAT on the merits were fully argued at the EAT hearing. It is not suggested that we can or should deal with the merits grounds ourselves. I would allow the appeal and remit all the other pleaded grounds of appeal to the EAT relating to the merits to Judge Tayler and his colleagues (if they are available) to determine. Whether they are content to do so on the basis of existing submissions is a matter for them.
Remission to the EAT
The decision of the Employment Tribunal on the merits
17. A question arose in the course of the evidence as to what role the conclusions drawn at Stage 1 of the process should play (if any) in Stage 2, the interview. The claimant essentially suggested that the scores at Stage 1 should, in some way, be carried forward to Stage 2 and influence the decision making at that stage. However, we find that that was not the respondent's written policy and procedure. Nor is there a broader legal principle or rule that this has to be the approach taken by a fair and non-discriminatory employer. Mr Wood [Head of Recruitment in Human Resources] gave a good explanation as to why, in fact, not carrying Stage 1 scores forwards into Stage 2, is actually designed to minimise discrimination (or the risk of it) rather than let it leak into the system. Effectively, the respondent's policy is to let those who are interviewed start the interview with a 'clean sheet' and with the interviewers holding no pre-conceptions about them based on the contents of their application form. The form itself has fulfilled its function of ensuring that the correct and suitable candidates get a chance at the interview. It is effectively a gatekeeping mechanism. Once candidates are at interview they have the opportunity to answer all the same questions as each other, according to their skills and experience. They may well draw some of their answers from the information which would be visible on the application form, or they may not. That is a matter of choice for each candidate in performing at an interview but it is giving everyone a fair chance so that the respondent can assess how they perform on the day. The respondent can assess how the candidates demonstrate their competence and suitability for the role against the relevant criteria. [emphasis added]
(1) A requirement to be educated to degree or higher level in business and/or science or equivalent level of experience working at a similar level.
(2) Proven post graduate experience in a business or related function.
(3) Experience in dealing with external and internal customers, negotiations and agreeing work programmes, reporting progress and dealing with issues to ensure delivery and customer satisfaction.
(4) Evidence of success in efficient and effective project and programme management.
(5) Skills for project management.
... the claimant has degrees: a BA in Foreign Language Studies, an MSc and a PHD in Organisational Management. The claimant's CV indicates that his employment experiences had a strong marketing theme running through them, along with elements of sales. His experience was largely in the private sector in terms of the number of jobs he had had, although we note some public sector work when he worked for the Tourist Board in Barbados between 1992 and 2000.
... We heard a lot of evidence around candidate B and how or why he should not have been put through to the Stage 2 interview. Our conclusions, having heard the evidence, are that the respondent's witnesses both independently scored candidate B and the claimant as meeting the requirements for an invitation to interview. There is nothing in the evidence to suggest collusion between those two witnesses in carrying out the scoring exercise.
9. The claimant focussed on the fact that the candidate B does not have a degree and took issue with the fact that both he and candidate B went through to an interview. He felt that candidate B's qualifications and experience had been overvalued and his own qualifications had been undervalued. However, the respondent's witnesses rightly took us to the essential criteria for the post at page 215. They refer to education to 'degree or higher level in business and/or science or equivalent level of experience of working at a similar level in a specialist area.' This means that there was, in fact, more than one way for a candidate to meet the essential criteria. A degree was not the sole route. Other equivalent experience would achieve the same outcome. ... On the face of it there is nothing wrong with the respondent putting two candidates through to interview, one of whom is qualified by a degree and the other of whom is not, so long as the respondent's own criteria have been properly and fairly applied.
10. We heard evidence from Mr Clehane and Mrs Johnston about how they carried out the scoring on the application forms. We found that both markers gave cogent evidence as to their reasoning for sending applicants through to the second stage. Judging and assessing the application forms required them to look at the breadth of the information provided on the form as against the criteria. The scorers had to use their judgment as to whether the application form met those criteria. They had to look at previous work experience and consider whether, in candidate B's case, it met the 'degree equivalence' criterion. They provided the evidence of equivalence that they had found in candidate B's application form. We had our attention drawn, in particular, to a number of matters. Firstly, candidate B had significant public sector experience working in the NHS. This was seen as an important factor as he would have knowledge of the culture and the particular features of the NHS as a public sector organisation. That would be pertinent to the role for which he was applying. Furthermore, he had experience of running his own business over a number of years and from that the scorers rationally deduced that he would have personal experience of business development, cost pricing and dealing with customers, again all pertinent to the job role in question with the respondent. There was evidence of him having worked with Cable & Wireless, a large organisation, and there was a rational assessment that this candidate had carried out project work and would have had to work to deadlines and work within a team. Even if that experience were further in the past, those project management skills would still remain and would still be relevant and indeed could be updated as required. Many of these observations relate to the concept of transferable skills. It is perfectly reasonable for an employer in the respondent's situation to look for evidence of such transferable skills.
11. The claimant put it to the respondent's witnesses that candidate B was 'just a care worker' but the documentary evidence suggests that he had been a rehabilitation therapy manager and was considering training as a physiotherapist so the claimant's generic description of him as a care worker perhaps understates the level of his expertise and ability. It is also relevant to note the respondent witness's observation that the respondent rarely has candidates with such public and private sector experience and that this was something of particular interest and relevance to the respondent. This would be something they would want to probe further at interview.
12. Nothing that this Tribunal has heard suggests that this was not an honest account of the witnesses' marking process. The evidence suggests, and we find, that they genuinely rated both the claimant and candidate B as suitable to go through to the next stage. There was nothing untoward in this. Indeed, we also note that at this stage of the process there was no differential treatment between the claimant and candidate B. Both candidates got through to the second stage, as did two further applicants, C and D. It appears, on the evidence that we have heard, to be a rational decision based on cogent justifications. Unfortunately, the claimant appears not to agree with a value system or marking system where a formal paper qualification does not push an applicant up to the top of the rankings automatically. However, for the reasons already stated, it is open to a respondent to have the 'degree or equivalent' metric that we have examined.
12. The successful candidate, B, a white candidate, had the following qualifications and experience (application SB 108): English GCSE Grade C. A City & Guilds Qualification in Healthcare. A level 3 Advanced Apprenticeship in Health and Social Care Level. B had worked in care and therapy related roles with the NHS for about 7 years. He had worked for 4 months as salesman in a motorcycle business in 2012 and had run his own business selling classic cars and motorcycles for about 10 years ending in 2012, 7 years prior to the interview. In his application form he also claimed that during 2012 he operated a motorcycle business in New Zealand and, at the same time, worked both as a care assistant and then a motorcycle salesman in the UK. Some 17 years before the interview, from when he was aged about 18 to 25, B had spent 7 years in IT with Cable and Wireless. He scored 55.5 at interview.
13. Once the application forms have been scored we move to stage 2, which is the interview stage. On 28 March the claimant was interviewed for the position. Four candidates (including the claimant) were to be interviewed for the vacancy. The pre-prepared process was that interviews would be conducted by a panel of two: Darren Clehane and Carolyn Johnston. Mr Clehane was designated as the hiring manager. He had the overall recruitment responsibility for managing the process. Carolyn Johnston worked as an Assistant Business Development Manager and was line managed by Mr Clehane. She was doing the same job as the vacancy that the claimant was applying for. During the interview process the claimant and the other candidates were asked the same seven questions, which were each scored out of a maximum of five marks. Scores from both panel members were then to be added together to give the final score. The maximum score available to each candidate was 70. The claimant's score was 52.5. All four candidates were then ranked from highest to lowest score. All four candidates achieved scores which meant they were of an appointable standard. The top score was achieved by candidate B and was a score of 55.5 marks. The claimant was ranked second highest in the rankings. The top scorer was offered the role, subject to references and pre-employment checks, on 2 April 2019. He was offered the role and accepted it on the same day. [emphasis added]
19. It is also important to note that the claimant asked the respondent's witnesses to compare the answers given by candidate B and himself. For this purpose he drew up a table with the answers side by side and critiqued how he was scored as compared to how candidate B was scored against the respective questions. However, this is not the way that the respondent actually carried out the scoring. They did not compare the candidates against each other. They assessed each candidate against a scoring matrix. In fact, the respondent witnesses made the very valid point that this was the first time that they had been asked to look at the scores alongside each other and compare the candidates with each other. The task on the day was in fact to mark the candidate against the criteria and not to mark each candidate against the others and indeed we heard evidence that that is what took place.
20. We also heard evidence that the questions set in this exercise had been used on a number of occasions for recruitment to similar jobs. So both of the people marking the interviews were aware of the kinds of answers which had been given in the past by successful candidates and which might be anticipated this time around. We find that the interview process is designed to ask the same question of each candidate and give equal opportunity to those candidates to demonstrate their experience and skills as against the job specification. The claimant says that the system is too subjective and that it could mask discrimination. We find that this system was as objective as it could be in the circumstances, particularly where an interview process forms part of the selection procedure. We understand why the claimant contends for an objective process. We also note that he referred, in his submissions to us, to doing the interview under 'laboratory conditions'. This is an indicator of the standard to which the claimant is holding the respondent. We conclude that laboratory conditions (or anything approaching laboratory conditions) are not feasible or reasonably practicable in the context of an interview process involving human beings. This is not a scientific experiment with that degree of control and standardisation. Marking a candidate's performance in interview will always necessitate an assessment by each individual interviewer of how they feel and observe the candidate to have performed against the scoring matrix. The interviewer has to draw conclusions as to what merits a particular level of score. It is unrealistic (and indeed impossible) to try and make it into a scientific answer.
21. Having heard the evidence we conclude that, in the circumstances of this recruitment exercise, the respondent's approach at interview provided the candidates with the best consistent interview experience possible. It is then for each individual candidate to perform well at interview and demonstrate their respective merits. We also note that at the conclusion of this process the differential between the claimant and the first ranked candidate was actually quite small.
57. We have asked ourselves what is the identified alleged act of discrimination in this case? The alleged discrimination is the failure to appoint the claimant to the March 2019 role. The respondent clearly failed to appoint the claimant to that role. That constitutes detrimental treatment. The crucial question is who is the comparator which we should use to carry out the comparison exercise that s.13 requires? The first option is candidate B, that is part of the way the claimant puts his case. We have reviewed this and have concluded that we do not think that he was a suitable and appropriate comparator because there are too many differences in material circumstances between the claimant and candidate B quite apart from the difference in race. This is particularly so given what the claimant says about the alleged inferiority of candidate B's qualifications and experience as compared to the claimant. The 2010 Act asks us to find a similar comparator, not someone who could be considered inferior, as the claimant effectively characterises candidate B. If we were to do as the claimant requests, we would be answering the wrong legal question. There are too many differences between the claimant and candidate B in terms of their CVs, their experience and their interview performances for these to be proper comparators. So, with that in mind we look at a hypothetical comparator. What would be the material characteristics of the correct hypothetical comparator and what would have happened to them if they had gone through the same recruitment process as the claimant? Well, we find that the hypothetical comparator would be someone in the same pool of candidates as the claimant with the same information on their application form as the claimant and who performed similarly at interview and gave broadly the same answers to questions at the claimant. However, the hypothetical comparator would not share the claimant's race. The hypothetical comparator would be competing against the same three candidates as the claimant did at the second interview stage. How would the hypothetical comparator have been treated? We find that there is nothing to suggest that a white comparator would have been appointed to the role. We conclude that the outcome of the selection process would have been the same. The comparator would not have been appointed either. This is because the basis for the appointment decision was the evidence which was elicited during the recruitment process and as a result of the proper application of the respondent's processes. The comparator would have obtained the same scores as the claimant and the process would have dictated that as the first ranked candidate, candidate B, would still be offered the job first. The hypothetical white comparator would have ranked second (i.e. first reserve). There is nothing in the evidence we have heard which leads us to draw an inference of discrimination. There is no evidence of any conscious or sub-conscious consideration of racial characteristics. Based on our findings of fact the claimant has not demonstrated that there is an inference to be drawn from breaches of process and procedure that there was discrimination on racial grounds. The respondent genuinely chose those who they assessed as the best candidate for the role based on their performance at interview on 28 and 29 March. There was no material breach of procedure from which the Employment Tribunal could draw an adverse inference of discrimination. [emphasis added]
The law
13 Direct discrimination
(1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.
23 Comparison by reference to circumstances
(1) On a comparison of cases for the purposes of section 13, 14, 19 or 19A there must be no material difference between the circumstances relating to each case.
136 Burden of proof
(1) This section applies to any proceedings relating to a contravention of this Act.
(2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred.
(3) But subsection (2) does not apply if A shows that A did not contravene the provision.
35.1. What is the relevant treatment
35.2. Was that treatment different to that of another person
35.3. Were there any material differences between the circumstances of the claimant and any such other person? (where there are no material differences in circumstances the other person is an actual comparator - where there are material differences, but the circumstances are sufficiently similar in a more general sense, the other person may be an evidential comparator, whose treatment may assist in deciding whether to draw an inference of discrimination)
35.4. Was the claimant treated differently to how another person would have been treated? (in such circumstances that theoretical person is often described as a hypothetical comparator)
35.5. Are their facts from which the Employment Tribunal could conclude, in the absence of any other explanation, that the respondent breached the EQA
35.6. If so, has the respondent shown that it did not contravene the EQA
It is trite but true that the starting point of all Tribunals is that they must remember that they are concerned with the rooting out of certain forms of discriminatory treatment. If they forget that fundamental fact, then they are likely to slip into error.
Comparators
54. Section 13 of the EqA requires that two matters be established for there to be a finding of direct discrimination. The first is that there has been treatment of the claimant (A) which is less favourable than the treatment that was meted out, or would have been meted out, to a comparator (B). The second is that the less favourable treatment was on the ground of the protected characteristic. Whilst it is open to an Employment Tribunal to go straight to the second question, the 'reason why' question (see Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] UKHL 11; [2003] ICR 337, at para 8, per Lord Nicholls of Birkenhead) it is common for a Tribunal to consider the 'comparator' question, as the Tribunal did in the present case.
55. There are three potential types of comparator: an actual (or statutory) comparator, an evidential comparator, and a hypothetical (statutory) comparator.
56. An actual comparator exists when there is no material difference between the circumstances relating to the claimant's case and the comparator's case. Express statutory provision is made for such a comparator in s 23(1) of the EqA, which states,
'(1) On a comparison of cases for the purposes of section 13 ... there must be no material difference between the circumstances relating to each case.' A comparison with an actual comparator (also known as a statutory comparator) may support or undermine a claimant's case.
58. However, it is clear that, even where the circumstances of a proposed comparator are not materially the same as those of the claimant, a Tribunal may take account of the way in which the respondent treated that person if there are some relevant similarities between their circumstances. A Tribunal may be assisted by seeing how unidentical, though not wholly dissimilar, comparators had been treated in relation to other individual cases. See Chief Constable of West Yorkshire Police v Vento [2001] IRLR 124 (EAT), at para 7, per Lindsay J. Such comparators are known as evidential comparators.
59. Furthermore, a Tribunal may consider whether it is assisted by considering how a hypothetical comparator in a similar (ie not materially different) position to the claimant, but who does not have the protected characteristic, would have been treated. Such a hypothetical comparator will be a statutory comparator, for the purposes of s 23.
60. It should be borne in mind, however, that the purpose of a Tribunal's consideration of comparators is to use it as an evidential tool to see whether an inference of discrimination is justified. It is not an end in itself. This was made clear by Lord Scott of Foscote in Shamoon, in the course of a very helpful summary of the law relating to comparators, at paras 107–110: ...
62. For practical purposes, it may not make a great deal of difference as to whether a comparator is an actual comparator or an evidential comparator. In Watt (formerly Carter) v Ahsan [2007] UKHL 51; [2008] 1 AC 696, Lord Hoffman, with whom all of the other Lords agreed, said:
'37. It is probably uncommon to find a real person who qualifies under section 3(4) as a statutory comparator. Lord Rodger's example at para 139 of Shamoon of the two employees with similar disciplinary records who are found drinking together in working time has a factual simplicity which may be rare in ordinary life. At any rate, the question of whether the differences between the circumstances of the complainant and those of the putative statutory comparator are "materially different" is often likely to be disputed. In most cases, however, it will be unnecessary for the tribunal to resolve this dispute because it should be able, by treating the putative comparator as an evidential comparator, and having due regard to the alleged differences in circumstances and other evidence, to form a view on how the employer would have treated a hypothetical person who was a true statutory comparator. If the tribunal is able to conclude that the respondent would have treated such a person more favourably on racial grounds, it would be well advised to avoid deciding whether any actual person was a statutory comparator.'
63. The question, in direct discrimination cases, as to whether the situations of the claimant, on the one hand, and the proposed comparator, whether actual or evidential, on the other, are comparable is a question of fact and degree: Hewage v Grampian Health Board [2012] UKSC 37; [2012] ICR 1034. The Supreme Court upheld the view of the Inner House of the Court of Session, restoring the decision of the Employment Tribunal, that unless the Employment Tribunal's judgment could be said to be absurd or perverse it was not for the Appeal Tribunal to impose its own judgment on the point. To like effect, in Kalu v Brighton & Sussex University Hospitals NHS Trust (UKEAT/0609/12) [2014] UKEAT 0609_12_1605, Langstaff P said, at para 24, that the identification of a comparator is a question of fact.
64. In order for a comparator to be an actual or statutory comparator, is not necessary that the circumstances are the same in every particular. In Vento, above, Lindsay J said, at para 12:
'... it is all too easy to become nit-picking and pedantic in the approach to comparators. It is not required that a minutely exact actual comparator has to be found.'
65. In Kalu, at para 24, Langstaff P said, 'The purpose of making the comparison ... needs to be understood before a comparator may properly be identified.' In our judgment, this is of central importance. Whether a point of difference has any significance or not depends on the nature of the less favourable treatment about which complaint is made. So, for example, if the complaint is about the claimant not being selected for a job, whilst the comparator was selected, the fact that the claimant and comparator have similar academic qualifications may well be relevant if the job required developed intellectual skills, but it is not relevant if the job requires solely manual labour or (to use one of Langstaff P's examples) is to model clothing.
Analysis
Disposal