The Claimant was made redundant in December 2018 but before then he had applied for an alternative post as Strategy, Planning and Operation (SPO) Director. He was unsuccessful. His last day was 21 December 2018 because of the Xmas holiday and his IT access was ceased from that date. He made 2 separate claims which were consolidated, claiming unfair dismissal; detriment and automatic unfair dismissal by reason of having made protected disclosures; age, race and religious discrimination; and breach of contract in respect of notice and redundancy pay. The ET dismissed all his claims: 1) The ET accepted there was a genuine redundancy situation which meant that the Claimant's role would cease or diminish to such an extent that it met the statutory definition of redundancy; 2) The ET was also satisfied that the process followed by the respondent was fair. Although the ET did not expressly address the claimant's application for alternative employment in the role of SPO Director, it did allude to this when dealing with a separate allegation relating to the termination of the Claimant's IT access i.e. that the Claimant had been disadvantaged by not having access to the Respondent's IT system between 21 and 31 December 2018; 3) The Claimant had simply failed to advance his discrimination claims. There was no evidence-in-chief in respect of them. In light of that, he had not transferred the burden to the Respondent to give a non-discriminatory explanation. The Claimant appealed on the basis that the ET had failed to permit him to develop, and/or to address in its judgment, his case on alternative employment to the extent that he relied on the differential treatment of a specific comparator. He said this was relevant as demonstrating that his dismissal was unfair and/or as shifting the burden of proof to the Respondent on his claims of discrimination..

The EAT dismissed the appeal. The case the Claimant had pursued before the ET – as set out in his claim forms and further particulars, and as summarised in the list of issues – had not identified the specific comparison relied upon for the purposes of his appeal. Although the Claimant had made an application for disclosure in respect of the individual in question, he had not then applied to amend his claim and it was not incumbent upon the ET to trawl through the interlocutory correspondence and applications to see if there might be some other case that he could advance and/or effectively undertake the task of amending the claim on his behalf, during the course of the full merits hearing.

More generally, to the extent that the Claimant had relied upon a specific comparator relevant to the issue of alternative employment in his claim, he had then failed to provide any evidential basis for concluding there had been inconsistent treatment/he had suffered any discrimination. On the basis of the claim before it, the ET had adequately engaged with the question of alternative employment and its reasons where sufficient to explain the conclusions it had reached in this regard.