EAT Rules Tribunal Erred on Comparators in Race Discrimination Case

The EAT held that a Tribunal erred in its approach to comparators in direct race discrimination case (Jones v Secretary of State for Health and Social Care [2025] EAT 76)

The claimant, Dr Jones, who is black, applied for a role with Public Health England (PHE). PHE’s recruitment process was divided into two stages: an initial sift (stage 1) followed by an interview (stage 2), the latter of which was the sole basis for PHE’s recruitment decision. Dr Jones passed stage 1. At stage 2, he scored the second highest. He was therefore not appointed to the role.

Dr Jones later discovered that the successful candidate (B) was white. Dr Jones brought a claim of direct discrimination against PHE, complaining that: (1) B was not sufficiently qualified to have passed stage 1; and (2) PHE should have compared each candidate’s interview answers against each other, rather than using a scoring matrix.

An employment tribunal rejected Dr Jones’ complaint. It decided that B was not a suitable comparator because there were “too many differences in material circumstances” (other than race) between Dr Jones and B, such as the alleged inferiority of B’s qualifications. The tribunal opted for a hypothetical comparator and concluded that a similarly qualified white candidate would not have been appointed either.

Allowing Dr Jones’s appeal, the EAT held, among others, that the tribunal’s rejection of B as a comparator on grounds of “too many differences in material circumstances” was irrational, and inconsistent with the tribunal’s own reasoning. If stage 2 was supposed to be a “clean sheet”, differences in credentials that were not taken into account at that stage could not be material differences that meant B could not be an appropriate comparator.

The case was remitted to a different tribunal.