Keep an eye out for a suitable comparator

An employee can lose out in a discrimination case when they do not use a suitable comparator to back up their claim, even when the employer’s treatment of the two is inconsistent.

In Nelson v Newry and Mourne District Council, case ref: 260/06, the council received a complaint that Ms O’Donnell had passed plants to another employee Mr Nelson — in effect that council property had been stolen.

The two employees were subject to disciplinary proceedings: Nelson was given a 12-month formal written warning and moved to another job; O’Donnell was just given a six-month formal written warning.

Nelson complained about the different treatment and successfully brought a sex discrimination claim in the tribunal. However, the employer appealed.

The Northern Ireland Court of Appeal noted that in addition to the harsher disciplinary sanction, Nelson, unlike O’Donnell, had not been given 24 hours’ notice of the disciplinary meeting, nor been shown a copy of the letter of complaint.

However, O’Donnell, unlike the claimant Nelson, had been co-operative and she had not known that the plants were for personal use. In other words, there were significant differences between the two members of staff’s situations.

The appeal court, therefore, found that there was no evidence that the treatment of Nelson was motivated by a discriminatory intention. Also, due to the differences in their situations, O’Donnell was not a suitable comparator for Nelson. Accordingly, the employer’s appeal was allowed.