Mr S John (Counsel) For the v Ms I Ferber (King’s Counsel) — 2024

Mr Hussain and Mr Aubdool brought direct discrimination complaints alleging less favourable treatment because of race and/or religious beliefs in relation to their pay compared with a White British non-Muslim comparator. The tribunal recorded that the hearing did not deal with remedy issues. It also noted that the grievance had been framed in part by reference to equal pay themes, but that the case before it was a claim under section 13 Equality Act 2010 for race and religion/belief discrimination.

The tribunal accepted that all three men eventually held the same job title and grade, but found that the comparator's pay history was materially different. He had transferred to the respondent through TUPE in 2009 from CSC, was already experienced in the IT sector, was placed in pay band 3 on £45,000, and then received a further rise in 2011 to £55,650. The tribunal found that his appointment was shaped by commercial pressure and the need to secure specialist resource, and described him as an outlier whose salary was higher than the respondent's usual practice.

By contrast, the tribunal found that Mr Aubdool and Mr Hussain joined the respondent at much earlier and more junior stages of their careers and progressed internally through the pay structure before reaching pay band 3. It accepted that when they later joined the comparator in the same role, the comparator's circumstances were not materially the same, particularly at the point of entry to pay band 3. Applying the comparison required by section 23 Equality Act 2010, the tribunal concluded that the comparator was not a proper comparator for this pay claim.

The tribunal further held that, even if the comparator were adopted, the claimants had not shown facts from which race or religion/belief discrimination could properly be inferred. It relied on the respondent's evidence about its pay-parity and benchmarking process, the comparator's unusual recruitment history, and the absence of evidence pointing to a discriminatory decision-maker. Using the hypothetical comparator analysis under Shamoon, the tribunal concluded that a White British male in the claimants' position would not have been treated differently. The claims were dismissed.