Correct comparator

Case 14: The facts

Ms Ward worked as a cleaner. Her manager, believing that she was skiving, went into the women's toilets while she was in there and shouted at her. A tribunal found that Ward had been discriminated against on grounds of her sex.

The ruling

The Employment Appeal Tribunal (EAT) held that there was no sex discrimination, and that the tribunal had selected the wrong comparator. A sex discrimination claim depends on the claimant being able to show that s/he was treated less favourably than someone of the opposite sex (the "comparator"). If there is no actual comparator, the claimant can use a "hypothetical comparator" and show that s/he would have been treated differently.

The appropriate comparator in this case, the EAT said, would have been a male cleaner whose female manager had the same "robust" management style and had come into the men's toilets and shouted at him in the same way. The EAT found that such a manager would have treated a male cleaner in the same way as Ward's manager had treated her, and therefore there had been no less favourable treatment.

Kettle Produce Ltd v Ward EAT/0016/06