157: Discrimination claims: decision-maker in a comparator’s case need not be the same person who decided the claimant’s case

In Olalekan v Serco Ltd, the Employment Appeal Tribunal (EAT) held that, in a claim of unfair dismissal and race discrimination, the decision-maker in the case of a comparator identified by the claimant need not be the same person who decided the claimant’s case.

Mr Olalekan, a prison custody officer, was captured on CCTV assaulting a prisoner who was restrained. Following disciplinary proceedings, Serco concluded that the force he had used was unnecessary and excessive, and he was summarily dismissed for gross misconduct. During his appeal, Mr Olalekan argued that five white custody officers who had used force against prisoners had not been dismissed. The appeal manager informed him that he would only investigate incidents which had occurred since his appointment as Director of the Prison the year before because he had introduced a significant change in policy towards violence at the prison at that time. He concluded that these comparators were involved in situations that were materially different, and Mr Olalekan’s appeal was unsuccessful.

Mr Olalekan brought various claims, including a claim of race discrimination on the basis that he had been treated less favourably than white police custody officers who had not been dismissed for similar assaults on prisoners. The Employment Tribunal dismissed his claims, agreeing with Serco that his comparators had been in materially different situations. The Tribunal also found that Serco would have summarily dismissed a white custody officer who had committed the same offence.

On appeal, Mr Olalekan argued that his disciplinary appeal had been unfair because of the appeal manager’s failure to investigate all the incidents in which he considered that white prison officers had been treated more favourably. The EAT disagreed with this argument. The reason the manager had limited his investigation was because he considered that only incidents which had occurred since he had introduced a zero tolerance approach to violence at the prison could be properly compared with Mr Olalekan’s situation. This was a reasonable approach. It was also relevant that Mr Olalekan’s union representative had agreed to this limitation on the investigation. In any event, at the Employment Tribunal hearing, Mr Olalekan’s legal representative had failed to cross-examine Serco’s witnesses on the circumstances of the comparators, despite the fact that the difference in treatment was key to his case. This meant that the Tribunal was entitled to accept the evidence of Serco’s witnesses.

Although the EAT dismissed Mr Olalekan’s appeal, it also disagreed with Serco’s argument that the circumstances of his comparators were materially different because their cases had been decided by different managers. The EAT held that the existence of a different decision-maker would not necessarily amount to a material difference for the purpose of identifying a comparator, so the employer could be liable for the discriminatory treatment of different employees in similar circumstances even though different decision-makers were involved.

The EAT’s judgment confirms that it will not always be necessary to carry out a full investigation into the circumstances of all comparators named by an employee. In some cases, a different decision-maker may amount to a material difference, for example, where the decision was made under a different policy or at a significantly different managerial level. However, where the only difference is the identity of the decision-maker, this is unlikely to be a material difference.