In Sutton Oak Church of England School v Whitaker, the employee was a gay male teacher. He was found in a classroom alone with, and offering sweets to, a male year 5 pupil during a lunchtime break, in breach of guidelines issued to him 13 years prior as part of an earlier disciplinary outcome. He was dismissed.
The employment tribunal found that a hypothetical heterosexual male teacher who had been found alone with a female pupil would not have been subject to the same treatment so his claim for direct sexual orientation discrimination succeeded.
The EAT decided the decision could not stand because the tribunal should have considered a hypothetical comparator who had been the subject of a warning in 2002 for inappropriate contact with children before concluding that discrimination had occurred.
This case is a reminder that a hypothetical comparator needs to be in materially the same circumstances as the claimant.