One of the most fundamental aspects of the British legal system is the idea that like claimants should be treated alike. This is an highly important element in any claim of discrimination since, in order for the claim to succeed, it must be demonstarted that but for the characteristic that led to the alleged discrimination, the claimant would not have suffered. In order to demonstrate this, an appropriate comparator must be selected who is identical to the claimant but for the one relevant characteristic.
Although this use of a comparator has long been a feature of the law, it can be seen that the need to select an appropriate comparator is one of the greatest hurdles to sufficient legal recognition of the issue of multiple discrimination.
The Case Law
In Bahl v the Law Society in 2004 the Court of Appeal had to consider whether, and if so how, current legislation could be used to address claims of multiple discrimination. Bahl was an Asian woman who alleged that she had been discriminated against on the grounds of her race and her sex. Although at first instance the Employment Tribunal held that she could compare herself to a white man so that both her race and sex could be taken into account, subsequently both the Employment Appeal Tribunal and the Court of Appeal decided that this was the wrong approach.
The Approach of the Court of Appeal
The Court of Appeal held that, even if the claimant had experienced them as inextricably linked, each possible ground of discrimination must be considered separately and have an individual verdict given on it. Giving judgement, Lord Justice Peter Gibson stated that:
“In our judgement, it was necessary for the Employment Tribunal to find the primary facts in relation to each type of discrimination against each alleged discriminator and then to explain why it was making the inference which it did in favour of Dr Bahl on whom lay the burden of proving her case. It failed to do so and thereby, as the Employment Appeal Tribunal correctly found, erred in law”
Essentially, the Court of Appeal found that verdict of the Employment Tribunal to be incorrect due to a failure to properly apply the comparator requirement. By applying what the Court of Appeal considered to be the correct approach to the selection of a comparator, Bahl’s claim failed due to the fact that, individually, neither race discrimination nor sex discrimination could be proved. If a more flexible approach as to the comparator was taken so that the duel factors of race and sex could be applied in a single comparator, then claims of multiple discrimination would have a far greater chance of success.
A Further Development?
Interestingly, in Shamoon v Chief Constable of the Royal Ulster Constabulary, Lord Nichols suggested that:
“… employment tribunals may sometimes be able to avoid arid and confusing disputes about the identification of the appropriate comparator by concentrating primarily on why the claimant was treated as she was.”
Although this comment has been taken no further, it would prove to be of particular use to claimants alleging multiple discrimination since they are the claimants that have particular difficulty in selecting an appropriate comparator. It has been shown that, in cases of multiple discrimination, it is frequently difficult to construct a comparator who does not share any of the prohibited characteristics of the claimant. Therefore, multiple discrimination cases would seem to exemplify the situation in which it would be preferable to, rather than placing emphasis on the comparator, ask why the claimant had been treated in such a way.
However, given the deeply entrenched nature of the comparator in UK anti-discrimination law, extremely persuasive case law or a new legislative enactment would probably be necessary before courts felt comfortable concentrating on the reasons behind the discrimination at the expense of the comparator.
References:
Lacey, N. "From Individual to Group? A Feminist Analysis of the Limits of Anti-Discrimination Legislation" in Unspeakable Subjects: Feminist Essays in Legal and Social Theory (1989) (Oxford: Hart)
Hannett, S. "Equality at the Intersections: The Legislative and Judicial Failure to Tackle Multiple Discrimination" (2003) 23 Oxford Journal of Legal Studies 65
