EWCA Civ 733, Underhill (VP) and McCombe LJJ, Morgan J, 11 June 2020
The requirement for a real or hypothetical comparator in direct discrimination cases has given rise to difficulties in judicial analysis, particularly in the context of pregnancy (see the saga which started with the decision of the EAT in Turley v Alders Dept Store  ICR 66, continued through that of the EAT in Hayes v Malleable Working Men’s Club  ICR 703 and culminated in the decision of the House of Lords in Webb v EMO (No 2)  ICR 1021). Matters improved significantly with the decision of the House of Lords in Shamoon v CC RUC  ICR 337 in which Lord Nicholls pointed out that the purpose of the comparator was not to create an additional arbitrary hurdle for the discrimination claimant, rather to assist in determining whether the claimant’s relevant protected characteristic was the reason for the treatment complained of. The Court of Appeal has recently repeated this lesson in the Tabadi case in which an employment tribunal, having decided that the claimant’s sex was not the reason for the treatment of which he complained, did not then proceed to consider how a hypothetical comparator would have been treated. The claimant’s appeal against the tribunal’s finding failed, though he did succeed in overturning a costs award on the basis that the tribunal had concluded without evidence that, had the claimant offered to withdraw his claim at an earlier stage, the BBC would not have pursued costs against him. The Court also doubted whether the claimant’s failure to establish a prima facie case meant that the claim had had no reasonable prospects of success.