The claimant worked as a freelance broadcast journalist for the respondent.  He had been in the job for approximately two years.   He applied for a permanent position but was unsuccessful.  Both successful candidates were women.  When feedback was requested, he was told that the new project involved a younger audience and ‘Women agenda’.   He resigned from his position and brought a claim for constructive dismissal as well as direct sex discrimination.

The basis of his claim was his assertion that the interview panel had assumed he had a lack of knowledge on women’s issues because of his sex, as well as conversations with managers who had stated women were under-represented in the organisation.  At first instance, the Tribunal found that the claimant did not establish a prima facie case, so the burden of proof never shifted to the respondent. Indeed, the Tribunal went further to suggest that even if the burden did pass, the respondent proffered the evidence on the scoring of the candidates.   On that basis, the Tribunal held that there was no reasonable prospect of success and a cost order was made against the claimant.

The appeal to the Court of Appeal centred upon two grounds – that being the suitability of the hypothetical comparator and the costs order.  On the use of comparators, the Court of Appeal stated that there were two questions to ask in a direct discrimination claim - whether there has been less favourable treatment and the reason why.  The court stated the latter question is often simpler and should be approached first.  The Court of Appeal held that the Tribunal was right to approach this question first and there was no need to consider any hypothetical comparator.  Therefore, the appeal on liability was dismissed.

On the issue of costs, the Court of Appeal allowed the appeal.   This was on two grounds.  The first was that the Tribunal’s finding that if the claimant had offered to withdraw then the respondent would not have pursued costs was one that the Tribunal was not entitled to make.   This was an ‘impermissible consideration’.  McCombe LJ also outlined that the Tribunal should not conflate a failure to shift the burden of proof in a discrimination claim with no reasonable prospect of success for the purposes of costs. Accordingly, the appeal on costs was successful.

Practical Lessons

This case demonstrates that it may not always be appropriate for the Tribunal to consider the troublesome hypothetical comparator.  It may be easier to consider the reason for the difference in treatment first and that may finalise the matter.   This is something to be considered in direct discrimination cases.  Furthermore, on costs the finding that failing to shift the burden does not equal no reasonable prospect of success is interesting and claimant friendly.   This must be considered by those wishing to seek a costs order.
https://www.bailii.org/ew/cases/EWCA/Civ/2020/733.html