If your employer treated you badly, that alone doesn’t prove discrimination.
“House of Lords: unreasonable treatment alone doesn't prove discrimination; a comparatorA comparator is someone in a similar situation to you but without your protected characteristic (for example, a different race, sex, or disability status), used to judge whether you were treated worse... is required.”
An employer treating you unreasonably is not, by itself, evidence of discrimination. You need to show a real or hypothetical comparator was treated better.
- Keep procedural complaints (a badly handled process) and discrimination complaints (worse treatment because of who you are) separate in your own mind. They need different evidence.
- Look for a comparator, a colleague without your protected characteristic who faced the same situation and was treated better. That comparison is what a discrimination claim is built on.
- If you cannot identify a comparator, get advice before assuming discrimination is the right claim to bring; an unfair dismissalA legal claim you can bring if your employer dismissed you without a fair reason or without following a fair process. You normally need two years of continuous employment to qualify, though some dismi... or procedural claim may be the stronger route.
The situation
An employee was dismissed by his local authority employer in circumstances he believed were unfair. A tribunal agreed the employer had acted unreasonably in how it handled his case. On the strength of that finding alone, it concluded he had also been discriminated against on racial grounds. The employer appealed all the way to the House of Lords.
What the court found
The House of Lords disagreed with the tribunal's reasoning. Discrimination turns on comparison: was there someone else, in comparable circumstances but without your protected characteristicOne of the nine characteristics listed in the Equality Act 2010 against which it is unlawful to discriminate. They include age, disability, race, sex, religion or belief, and sexual orientation. If yo..., who got better treatment, or would have? Showing your employer acted unreasonably isn't enough on its own. Unreasonable treatment doesn't tell you anything about how a different colleague would have fared. The two questions are separate. A tribunal can't collapse one into the other.
Strathclyde Regional Council v Zafar (also reported as Glasgow City Council v Zafar). House of Lords. 27 November 1997.