Representation:

1. It is not always right for employment tribunals to adopt the two step process commonly adopted in direct discrimination and victimisation cases (ie first to consider whether the claimant received "less favourable treatment" than the appropriate comparator and if so then, secondly, to consider the "reason why"). This two step approach to what is essentially a single question ("did the claimant, on the proscribed ground, receive less favourable treatment than others?") can cause problems especially if the choice of comparator is in dispute.

2. If a tribunal does decide to adopt the two step process noted above, it may sometimes be helpful to reverse the two steps and "..... postpone determining the less favourable treatment issue until after they have decided why the treatment was afforded to the claimant" (Ld Nicholls at para 12).

3. If no valid comparator can be found in a sex discrimination case it is legitimate to make a comparison with a hypothetical comparator.

4. in many cases debating the correct characterisation of a comparator is less helpful than focusing on the fundamental question of the reason why a claimant was treated in the manner complained of (see paras. 7-12 in the speech of Lord Nicholls)

5. Although employment tribunals must set out clearly the facts on which they base their decisions they are not required to attain a very high standard in setting out the reasoning behind their decisions.

For relevant general notes see Sex discrimination/a general introductory note and/or victimisation and/or Procedure of Employment Tribunals/2001 rules/rule 12 - Decision of tribunal ).