A simple (if not entirely accurate) way of looking at sex discrimination claims could be summarised as:
- was there a detriment?
- is there a comparator (real or hypothetical)?
- is there a non gender related explanation for the difference (if any)
- if there is a comparator and a difference and no explanation then the tribunal may infer discrimination.
An infinite amount of time and money has been spent litigating over who or what is an appropriate comparator (whether real or hypothetical) and what is a detriment.
In the recent case of Marriott Motor Group and Ors v Cottingdon http://www.bailii.org/uk/cases/UKEAT/2009/0319_08_1404.html the Employment Appeal Tribunal (EAT)considered when this inference might be drawn and decided the tribunal had not made the necessary primary findings of fact (eg what they believe happened) and their inference of discrimination was premature.
EAT also decided an imaginary man in the same situation might have been treated the same way.
It is not enough for a woman to say this is happening because I am a woman – she must assert a specific comparator – real or hypothetical that is appropriate. However employers who fail to provide an explanation for different treatment remain at risk of the ‘inference test’.
There is a big difference between asserting something – this is my explanation – and proving it – here are the records of what happened before. No-one should walk into tribunal thinking all they have to do is talk and all will be well.