The claimant initiated the proceedings while still in employment and arose because she thought she had been treated differently when it came to disciplinary action as compared to fellow white managers. The ET found, among other things, the speed with which the claimant was disciplined and suspended in comparison with others meant race played a part. In the EAT, the issue of comparators and burden of proof were raised but the appeal failed.

Lady Justice Laing gives the lead judgment in the appeal. She undertakes an extensive review of the evidence and arguments put forward to the ET and the EAT, including at [57-59] some observations on actual, a hypothetical, and 'evidential' comparators. She then dismisses the four grounds of appeal, partly as there was no substance in the respondent's argument that the ET had misidentified the comparators, an assertion the judge thought to be 'pernickety criticism' which is to be avoided.