Employment Law Speed Read – 11/02/19

Facts

Mr Olalekan was employed by Serco Ltd as a prison custody officer at HM Prison Thameside. Serco Ltd has a number of standard operating procedures, one of which concerns the use of force. The procedure states that the use of force by officers is only permitted when “absolutely necessary” and as a “last resort”.

On 15 July 2016, Mr Olalekan was involved in an incident at the prison in which a prisoner became aggressive and threatened to assault him. Despite attempts to calm him down, the prisoner failed to comply with Mr Olalekan’s orders. With the assistance of other custody officers, Mr Olalekan restrained the prisoner. After the prisoner had been brought under control, and therefore no longer presented a threat, Mr Olalekan struck the prisoner’s head three times. The assault was captured on CCTV and the matter proceeded to a disciplinary hearing.

On 26 September 2016, Mr Olalekan was summarily dismissed for gross misconduct; the force used by him was deemed to be excessive and unnecessary. Mr Olalekan unsuccessfully appealed against his dismissal.

Mr Olalekan brought a claim to the Employment Tribunal (ET) alleging that his dismissal was unfair and discriminatory on grounds of race. In his claim, Mr Olalekan referred to a number of white custody officers who had not been dismissed following their use of force against prisoners.

Employment Tribunal

In order to successfully bring a claim for direct race discrimination, the employee must demonstrate that, because of their race, they have been treated less favourably than a comparator whose circumstances are not materially different to theirs. A comparator can be either real or hypothetical.

The ET found in favour of Serco Ltd and dismissed Mr Olalekan’s claims. The ET held that the comparators put forward by Mr Olalekan were involved in materially different situations. Accordingly, there was no evidence that Mr Olalekan had been treated less favourably than a comparable white custody officer who had used excessive force against a prisoner. Further, the ET held that Mr Olalekan’s evidence lacked credibility and his version of events was inconsistent.

Mr Olalekan appealed to the Employment Appeal Tribunal (EAT).

Employment Appeal Tribunal

The EAT again found in favour of Serco Ltd and dismissed Mr Olalekan’s appeal. The EAT held that the ET had not erred in its approach when considering comparators. The EAT stated there was clear and unchallenged evidence that there were material differences between the comparators and Mr Olalekan, and that the evidential value of the comparators was “severely limited.”

The EAT also held that for the purposes of identifying a comparator, the existence of a different decision-maker does not necessarily amount to a ‘material difference’. The EAT stated that a different decision-maker could amount to a material difference if, for example, the decisions were made under different policies.

Comment

This case clarifies that when using a comparator for the purposes of direct discrimination, the circumstances of the employee and the comparator cannot be materially different. Further, if the only difference is the identity of the decision-maker, this is unlikely to constitute a material difference.

If you have any questions on the above and how it will affect you, please do not hesitate to get in touch with a member of our employment team.