The Claimant, who is of African-Caribbean descent, was unsuccessful in his job application with the Respondent, the successful candidate (candidate B), who was white, being offered the post. The Claimant alleged that the successful candidate did not have sufficient relevant qualifications and experience to have reached the second stage of the 2-stage interview process. He made a claim for race discrimination which was dismissed because it was out of time and on its merits. His appeal to the EAT failed on the time point and therefore the substantive claim was not heard but the Court of Appeal allowed his appeal on the time point and remitted the claim to the EAT.

The EAT allowed the appeal. The ET erred in law in its analysis of the stage 2 decision because of its failure to properly analyse whether candidate B was an actual or evidential comparator and, if so, to consider the scoring of the claimant as against that of candidate B. Also, the analysis of the stage 1 sift could not stand. The ET failed properly to consider the possibility that, notwithstanding the fact that both the Claimant and candidate B were successful at the stage 1 sift, if candidate B was favourably treated in a manner that was materially influenced by his race, and but for that treatment he would not have passed the stage 1 sift, that could have been detrimental treatment of the Claimant because the Claimant would otherwise have scored highest at the stage 2 interview and so would have been appointed.