UNFAIR DISMISSAL – Reason for dismissal including substantial other reason
RACE DISCRIMINATION – Direct
RACE DISCRIMINATION – Comparison
The Claimant was employed as a Prison Custody Officer (PCO). He was dismissed following an assault on a prisoner committed whilst the prisoner was being restrained. The Claimant alleged that the dismissal was unfair and discriminatory on the grounds of race as other white PCOs had not been dismissed for similar assaults on prisoners. The Employment Tribunal (ET) dismissed his claims.
The principal ground of appeal was that the ET should have constructed a hypothetical comparator based on the information as to the other white PCOs. That ground was not upheld as the ET’s approach to the hypothetical comparator disclosed no error of law. The Claimant had not sought to challenge the Respondent’s evidence that the circumstances in which the white PCOs were dismissed were materially different from those of the Claimant. As such, the ET could not be criticised for not constructing a comparator in the manner suggested. The ET did consider whether the Respondent would also have dismissed a white PCO who had committed the same offence as the Claimant, and found that it would. That hypothetical comparator was adequate in the circumstances, and the conclusion that that person would also have been dismissed was supported by evidence.
Citations:
[2019] UKEAT 0189 – 18 – 3001
Links:
Jurisdiction:
England and Wales
Employment
Updated: 04 May 2022; Ref: scu.633780