SEXUAL ORIENTATION DISCRIMINATION
The Claimant is a primary school teacher. He was dismissed for being in a classroom alone with a male Year 5 pupil (referred to here as ‘LK’) during the lunchtime break and offering sweets to LK. The Claimant’s conduct was in breach of guidelines issued to him for similar conduct some years earlier.
The Claimant brought claims of unfair dismissal and discrimination on the grounds of sexual orientation and disability – the Claimant is gay and HIV-positive – as well as claims of victimisation and harassment. The claims of unfair dismissal and direct discrimination on the grounds of sexual orientation were upheld. The Respondents 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.
Held: The Tribunal had erred in its approach to the hypothetical comparator. In particular, it had failed to ensure that the circumstances of the hypothetical comparator were not materially different from those of the Claimant. There was no proper factual foundation for the conclusion that the Claimant’s treatment was on the grounds of sexuality, the Tribunal’s decision being based on an incorrect factual premise and on factors relevant to individuals who were not the actual decision-makers.
Citations:
[2018] UKEAT 0211 – 18 – 1312
Links:
Jurisdiction:
England and Wales
Employment, Discrimination
Updated: 14 June 2022; Ref: scu.635150