Anjali Malik & Mukhtiar Singh consider the comparator question in discrimination claims
- The Employment Appeal Tribunal in Jones and Ladbrokes set out a six-stage test for direct discrimination claims, emphasising the need to identify the relevant treatment before considering comparators.
- Other recent cases show that tribunals increasingly investigate wider circumstances to identify evidential comparators.
- Employers should expect scrutiny beyond named comparators, and maintain detailed factual records to demonstrate material differences.
Comparators have always been an essential element of direct discrimination claims, yet the approach to comparators continues to provide fertile grounds for appeal—and 2025 yielded a substantial crop of appeal decisions.
June decisions
Readers may recall that in Jones v Secretary of State for Health and Social Care [2024] EWCA Civ 1568, the Court of Appeal determined that the Employment Appeal Tribunal (EAT), in upholding the employment tribunal’s (ET’s) decision that the claim was out of time, had erred by considering the claimant’s (C’s) suspicion of the necessary facts to establish discrimination as a relevant factor when applying the just and equitable test. The
