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Race discrimination: When to construct hypothetical comparator

This report relates to 2 case(s)

In Balamoody v United Kingdom Central Council for Nursing, Midwifery and Health Visiting [2002] IRLR 288, the Court of Appeal holds that, after deciding that the comparators identified by the complainant in a race discrimination case were not true comparators, an employment tribunal should have constructed a hypothetical comparator against which to consider whether there was evidence to support an inference that the complainant's treatment had been tainted with race discrimination. The tribunal erred in law when it failed to do so and held, in the absence of a true comparator, that no prima facie case of race discrimination had been made out. The EAT holds in Williams v HM Prison Service 7.2.2002 EAT 1236/00 that, where there exists a true comparator whose treatment can be compared with that of the complainant, there is no additional duty on a tribunal to construct and consider the position of a hypothetical comparator.