Who is the appropriate comparator?

TNT Express Worldwide (UK) v Brown (unreported), April 2000, Court of Appeal

• Brown brought a race bias claim against TNT and asked permission to take
time off work to meet his adviser. His request was refused and he was informed
in writing he would be subject to disciplinary proceedings and dismissal if he
failed to attend work. Brown was summarily dismissed after ignoring the
instructions and meeting the adviser.

The tribunal upheld Brown’s additional claims of unfair dismissal and
victimisation because he had been treated less favourably than another employee
who had brought a claim (unrelated to race) against TNT.

The EAT dismissed TNT’s appeal, as did the Court of Appeal. It held that the
decision in Khan (Personnel Today, 6 March) established the correct approach
for identifying the appropriate comparator. It was necessary to look at what
was requested rather than the reason for the request to ascertain how it should
be treated; an employee at TNT giving advance notice was normally granted a
leave of absence.

The Court of Appeal agreed that the dismissal and refusal to allow the time
off was tainted by bias.

Marital status was irrelevant

Bloomberg Financial Markets v Cumandala, IRLB 636, EAT

• Cumandala, an Angolan, applied for a position with Bloomberg based in
Madrid. He was not appointed because he intended to commute weekly to spend
weekends with his wife in London. He was also considered for a London post but
this was offered to Gunn who was white.

Cumandala claimed he was treated less favourably because of his marital
status and suffered race discrimination when rejected for the London post.

The tribunal upheld his first complaint but dismissed the second. Both
parties appealed.

The EAT allowed Bloomberg’s appeal and accepted Cumandala was not appointed
to the post in Madrid because his intention to commute, irrespective of the
reason, meant he could not give the necessary commitment to the job.

Regarding Cumandala’s appeal, the tribunal had made a specific finding that
a white person would fit into the London team, in racial terms, which implied a
black person would not fit in. Accordingly the tribunal should have upheld the
race discrimination claim and the appeal was allowed.

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