Treated less favourably? Compared to whom?

Ms L McLean v Siemans Mobility Ltd.

The Claimant, a contract worker for Siemens Mobility Limited, brought a slew of claims against the company. The allegations? That she had suffered detriment and discrimination after making protected disclosures about billing practices, project status, and alleged profiteering, as well as victimisation and direct sex discrimination regarding timesheet approval and pay disparities.

The Employment Tribunal, however, saw things differently. In a comprehensive judgment, the tribunal dissected each of the claims and found them wanting. The alleged protected disclosures? They didn’t meet the legal threshold. The claimed detriments? Not causally linked to any disclosures. The discrimination complaints? Unsupported by the evidence.

But this case is more than just a vindication for Siemens. It’s a master class in how employers should handle such situations. The tribunal’s findings underscore the importance of thorough investigations, clear communication, and prompt action when faced with complaints from any worker, contractor or not.

We’re not here for the judgment…

Due in no small part to Siemens’ preparedness for the hearing and effective record keeping, the Employment Tribunal saw things somewhat differently from the Claiment. The decision (link above) describes how the tribunal dissected each of her claims and found them wanting:

• The alleged protected disclosures? They didn’t meet the legal threshold.¹
• The claimed detriments? Not causally linked to any disclosures.
• The discrimination complaints? Unsupported by the evidence.

The judgement is worth reading, not least as a reminder that it is essential employers are organised and prepared when responding to a claim at an Employemnt Tribunal. That preparedness starts not when you know there is a claim, or when you fear there might be, but from day one of having a workforce of any size. A significant part of being so prepared in record keeping. Make contemporaneous notes, not just of management meetings, but anytime you give feedback or engage in any other significant interaction.

When I say, as I do a lot, “excellence starts with simple things done well“, it’s because sometimes a simple thing such as noting, not just a decision, but the reason for that decision will become key to the excellence that is effectively defending yourself before a judge.

However, that’s all really an aside. The reason I wanted to note this tribunal decision is primarily because of the useful direction the Tribunal gave itself, and set out for us to read, about what constitutes an appropriate comparator when making, or defending, a claim of discrimination on the grounds of a protected characteristic, in this case, sex.

Understanding Comparators in Discrimination Cases

A comparator in employment law is used to establish if an individual has been treated less favourably than others who share similar circumstances, but not the same protected characteristic (e.g., sex, race, disability). The tribunal’s discourse in the Siemens Mobility case underscores the criticality of selecting an appropriate comparator as a linchpin for proving direct discrimination.

1. The ‘ideal’ comparator is someone in the same position as the claimant, save for the protected characteristic. However, finding an exact match is often difficult. The law allows for hypothetical comparators to be used as an evidential tool, even if they don’t meet the strict statutory definition.
2. Differences in skills, experience, and qualifications can render a comparator invalid. In this case, Ms McLean tried to compare herself to male colleagues, but the tribunal found they were not true comparators due to differences in their rail industry experience and the specifics of their roles.
3. Minor pay differences may not establish less favourable treatment if they can be explained by non-discriminatory factors. Here, the respondent company was able to show that pay variations were due to things like individual negotiations and market rates, not gender.
4. Employers should be prepared to justify differences in treatment between employees or workers. Clear, non-discriminatory explanations are key. If you can show a good reason for a decision that isn’t related to a protected characteristic, you’re in a much stronger position.
5. Consistency is crucial. If you treat similar cases differently without good reason, it can raise an inference of discrimination. Having clear policies and applying them evenly is a must.

So what?

What does this mean in practice? If an employee or worker raises a discrimination complaint and points to comparators, take the complaint seriously, but scrutinise those comparisons carefully. Are they really in the same position as the complainant? Are there material differences in skills, experience, or role? If so, explain these clearly.

Note, the onus is on the employer to show that any difference in treatment is not discriminatory once the claimant has established a prima facie case. Solid record-keeping, clear decision-making processes, and a commitment to fairness and consistency are your best defensese – simple things, done well.

Notes

1. Kilraine v London Borough of Wandsworth is useful when considering the nature of a protected disclosure ↩︎