Comparators in discrimination claims

Claimants in race discrimination claims can face difficulties when they believe that they have been treated less favourably, and have an actual comparator in mind but do not know the race of that comparator. In a recent Employment Appeal Tribunal decision, it was held that the claimant should not delay in bringing their claim whilst trying to discover the race of their comparator.

In the case of Jones v Secretary of State for Health and Social Care, the claimant employee, who was of African-Caribbean descent, applied for a promotion. He was unsuccessful. The successful applicant accepted the role on 2nd April 2019. The claimant did not find out he hadn’t got the job until 3rd July 2019. He asked for details of the successful candidate but this was not provided by the respondent. The claimant issued a claim for race discrimination on 29th October 2019.

The tribunal held that the claimant's claim was out of time. The primary time limit ran from 2nd April 2019 and it was not just and equitable to extend time. The EAT agreed. The EAT was only able to overturn the tribunal's conclusion that it was not just and equitable to extend time if it was perverse. The tribunal had correctly weighed the issues the claimant had in discovering the race of the successful candidate and the prejudice to the respondent caused by the delay.

The EAT did, however, criticise the respondent for not disclosing the race of the successful candidate until after the submission of its tribunal response. The EAT reflected that failure to provide such basic information might, in appropriate circumstances, lead to an inference of discrimination.

This case shows that respondents should not hold back information about potential comparators. If they do so they risk an inference being drawn that they have swept the information under the carpet – leading to an inference of discrimination.