The Claimant brought an age discrimination complaint based on an offer of employment at a total package of £110,000. She refused that offer as she felt that it undervalued her contribution to the Respondent. In due course, the role was offered to her comparator but at a salary of £100,000. However, the Respondent had had to pay an additional £15,000 to a recruitment agency in order to secure the employment of the comparator. The Claimant suggested that this amounted to less favourable treatment of her as the Respondent had incurred a total cost of £115,000 in engaging the comparator but had only been willing to offer £110,000 to her. Her claim was struck out by the ET on the basis that she had not in fact been subjected to less favourable treatment than her comparator who had been engaged on a lower package than had been offered to her. She appealed to the EAT.

The EAT dismissed the appeal. It was a necessary requirement of a claim under section 13 Equality Act, to show that she had been less favourably treated than her comparator. Her case was in fact that she should have been still more favourably treated than the comparator and should have been offered employment at a salary of £115,000, that being the overall cost that the Respondent had incurred in recruiting the comparator to the role which the Claimant had turned down.