Chief Constable of West Yorkshire v Vento (2001) IRLR 125
Stenning v Jarman and London Borough of Hackney (unreported; 17.11.2000, EAT/1288/99)

Proving Discrimination generally requires proof of less favourable treatment of the applicant compared to someone who is of a different racial group or gender. Often it is difficult to find a person who is in the same situation as the applicant. Instead reliance is placed on a hypothetical person, asking a tribunal to imagine how the employer would have treated someone of a different race in similar circumstances to the applicant. If the Tribunal decides the treatment would have been different, the Tribunal can infer that the difference of treatment is on grounds of sex or race and amounts to unlawful discrimination.

Two recent cases suggest a better approach to how the comparison should be approached when there is no actual like-for-like comparison.

In Chief Constable of West Yorkshire v Vento a tribunal had inferred less favourable treatment by comparison with the treatment of other males and female police officers. They were not an exact match, but they had either been considered dishonest by their employer or reflected other similarities with the applicant's alleged position. The Employment Appeal Tribunal stated that it did not matter that the comparison was not exact - they were examples which could be used to judge how a hypothetical male would be treated. The tribunal was entitled to infer from the examples that a male probationer accused of dishonesty would not have had their probationary employment terminated, unlike the applicant.

The EAT did not say that the tribunal was compelled to use actual comparisons to construct the hypothetical, only that it was a permissible approach.

Another EAT case goes a little further. In Stenning v Jarman and London Borough of Hackney the Employment Tribunal found against the applicant by rejecting actual comparators put in evidence. However on appeal the EAT said that if a comparison is rejected, the Tribunal must show how the treatment and circumstances of the comparators were different and explain its decision.

These cases suggest that it is increasingly useful to produce named comparisons as examples if not evidence to a tribunal of discrimination.