The Claimant brought proceedings for both direct and indirect discrimination in relation to his failure to obtain twenty-two posts for which he applied and also with respect to certain other matters. However, he failed to establish that there was any direct or indirect discrimination in the way in which the Respondent dealt with his job applications. He appealed only the finding that there had been no direct discrimination with respect to his job applications and the appeal was successful. The EAT held that in various ways the ET had erred in its analysis of that question, and in particular in the way it approached the burden of proof in direct discrimination cases. It remitted the case to a different employment tribunal for it to consider the issue of direct discrimination afresh. The EAT carefully prescribed the scope of the remitted hearing, indicating in some detail which findings should be preserved and directing that no fresh witnesses could be called. The rationale for this was that the judge took the view that "it would [not] be right to give the Respondent the opportunity substantially to re-shape its case". The Respondent appealed against the EAT decision, its principal case being that there was no material error by the ET in its legal analysis, but as a subsidiary issue it contended that even if the ET was in error as the EAT held, the limited scope of the remission was unjustified.

The Court of Appeal allowed the appeal. This was a case where the allegations of discrimination were mere assertion and the Claimant had not backed up his claims with the necessary factual foundation. He fell at the first stage by failing to enable the ET to identify a particular comparator with whom he could be compared. Quite independently of that, there was plenty of evidence to support the ET's decision. The ET was manifestly entitled to reach the conclusion that it did.

[Read the full text of the judgment on Bailii

](http://www.bailii.org/ew/cases/EWCA/Civ/2019/18.html)