The Claimant had been engaged by the Respondent, as an agency worker, on a zero-hours contract. He told an employee of the Respondent that he had been racially abused by an agency worker supplied by a different agency, but she did not accept that this had amounted to a complaint. On the Claimant's direct race discrimination claim, the ET found that any reasonable employer would have clearly identified this as a complaint requiring investigation, and that the Respondent's failure to action a complaint amounted to less favourable treatment; further, the Respondent was unable to show a non-discriminatory reason for its failure to investigate the Claimant's complaint, and so the claim succeeded. The Respondent appealed, contending that the ET failed to identify an actual or hypothetical comparator, such that it could not fairly conclude that the Claimant had received less favourable treatment because of his race, and that its conclusions were perverse.

The EAT held that the ET did not expressly identify a comparator when concluding that the Claimant had received less favourable treatment, and that the matters on which the ET relied for its conclusion that the Claimant had established a prima facie case of direct race discrimination failed to have any regard to whether the relevant hypothetical comparator would have been treated any differently. Accordingly, the matter would be remitted to a fresh ET to determine liability and, if appropriate, remedy.