The Claimant, who had worked as a prison custody officer (PCO) for the Respondent organisation, was dismissed for assaulting a prisoner who was being restrained. He alleged that his dismissal was discriminatory on the grounds of race, and he referred to similar assaults on prisoners by white PCOs who had not been dismissed. The ET dismissed the Claimant's claims, finding that the comparators were involved in materially different situations. The Claimant's main ground of appeal was that the ET should have constructed a hypothetical comparator based on the information as to the other white PCOs.

The EAT held that there was no error of law in the ET's approach to the issue of comparators.