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When deciding whether an employee has been discriminated against on the grounds of their sex, a comparison must normally be made with someone else - 'the comparator' - in circumstances not materially different from the employee's own. Where there is no suitable comparator, a hypothetical comparator must be constructed. Unsurprisingly, problems often arise in sex discrimination cases in determining the correct comparator to be used and exactly which circumstances are relevant. This was the issue in a recent case in the Employment Appeal Tribunal (EAT) - Kettle Produce Ltd. v Ward.

Ms Ward was employed as a cleaner by Kettle Produce Ltd. at its fruit processing, packaging and distribution factory in Fife. She brought a claim of sex discrimination, alleging four incidents of discriminatory behaviour towards herself on the part of the manager of the cleaning department, Mr Gowans. He had a poor view of Ms Ward as a worker and was described as having a 'robust management style'.

The Employment Tribunal (ET) dismissed three of Ms Ward's claims but upheld her claim regarding an incident where she had been in the women's toilets, waiting for a cubicle to become vacant, when Mr Gowans entered and, believing that she was skiving off work, shouted at her. The ET judged that when a man enters the women's toilets in such circumstances, it is plainly an act of sex discrimination. It awarded Ms Ward £1,750 plus interest for injury to her feelings.

Kettle Produce Ltd. appealed against the decision on the grounds that the ET had failed to construct a relevant hypothetical comparator in the case. The EAT upheld the appeal.

The EAT judged that the fact that Ms Ward had been confronted by a male manager in the women's toilets was central to the ET's decision in this instance. It had found that Ms Ward failed to demonstrate that the incidents that took place in areas of the factory where there was no exclusivity of gender were discriminatory. A correct comparison should therefore envisage invasion of a space reserved for the opposite sex. In such circumstances, the question which the ET should have asked, so that the construct of the hypothetical comparator was not materially different from the circumstances of the case, was would a female manager, with the same robust management style as this manager, treat a male cleaner, with the same sensitivity as the claimant and who she believed to be skiving, in the same way as the manager treated Ms Ward?

As the answer to this question was considered to be 'yes', Ms Ward's treatment was not unlawful sex discrimination.

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