The claimant was originally employed on a 30 hour per week contract but following some sick leave and after she was diagnosed with Conns Syndrome (it was agreed she had a disability), she was only offered 17 hours on her return, a decision partly influenced by occupational health advisor who recommended she work avoiding certain shift patterns. The claimant complained to her managers and in the course of that process she mentioned a comparator whose own hours had been increased, but with no change to her own hours, she resigned. The ET had concluded that had the claimant not been disabled she would have been offered extra hours.

The respondent appealed on various grounds including the incorrect use of a comparator and that the claimant had affirmed her contract. HHJ Tayler, after reviewing the relevant law on comparators, direct discrimination and affirmation, dismissed the appeal. This was partly because in oral argument counsel for the respondent had argued that the claimant had affirmed the contract by accepting sick pay though that argument had not been raised in the ET.