Virgin Active Ltd v Hughes

Virgin Active Ltd v Hughes [2023] EAT 130

Facts

The claimant worked as a manager at a gym. He was fired, and he won claims in a tribunal for wrongful dismissal, automatic and 'ordinary' discrimination, and racial discrimination in relation to the way his disciplinary and grievance matters were handled. The Respondent filed an appeal on a number of different grounds, but the only one that was successful was to reverse the findings on racial discrimination.

As part of its investigation into the allegation of racial discrimination, the tribunal used three of the claimant's coworkers as comparators. However, the tribunal found that the circumstances of these colleagues were quite different from those of the claimant. The complaint was upheld when the tribunal determined that the different ways in which the comparators were treated created a change in the burden of proof.

Held

The Employment Appeal Tribunal (EAT) came to the conclusion that the tribunal had made a mistake. It had not been stated whether or whether the Claimant's comparators were real comparators, despite the fact that their circumstances seemed to be different from those of the Claimant. A tribunal has an obligation to determine whether or not a claimant and an actual comparator have significant differences from one another. When there is a bigger disparity in the circumstances surrounding the claimant and the comparator, there is a lower likelihood that there was discrimination at play when the two groups were treated differently.

The EAT provided the following illustration: two persons of different races attend an interview for a job. If one person succeeds at the interview and the other does not, it would not be sufficient on its own to transfer the burden of proof; but, if both applicants scored similarly in an evaluation, that may very well shift the burden. The judgement also includes a helpful overview of the reasons why delay on its alone is not a ground for appealing the decision.

Comment

According to the decision rendered by the Employment Appeal Tribunal (EAT) in the case of Virgin Active Ltd v Hughes, that the tribunal erred in its determination that treating a colleague who made a comment about their own race as a valid comparator for a claimant who made a comment about a colleague's race constituted discrimination in a direct race discrimination claim.