Mr D Martin v The Board of Governors of St Francis Xavier 6th Form College
| Jurisdiction | UK Non-devolved |
| Judge | Mr Justice Cavanagh,Mr Nick Aziz,Dr Gillian Smith |
| Court | Employment Appeal Tribunal |
| Published date | 01 March 2024 |
Judgment approved by the court for a hand down Martin v St Francis Xavier
Neutral Citation Number: [2024] EAT 22
Case No: EA-2021-001354-BA
EMPLOYMENT APPEAL TRIBUNAL
Rolls Building
Fetter Lane, London, EC4A 1NL
Date: 27 February 2024
Before :
THE HONOURABLE MR JUSTICE CAVANAGH
MR NICK AZIZ
DR GILLIAN SMITH MBE
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Between :
MR D MARTIN Appellant
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THE BOARD OF GOVERNORS OF ST FRANCIS XAVIER 6TH FORM COLLEGE
Respondent
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Mr David Stephenson (instructed by Direct Access) for the Appellant
Mr Jonathan Heard (instructed by Lyons Davidson) for the Respondent
Hearing date: 12 December 2023
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JUDGMENT
Judgment approved by the court for a hand down Martin v St Francis Xavier
SUMMARY
RACE DISCRIMINATION
This judgment considers the law relating to comparators in discrimination cases, including actual
statutory comparators, evidential comparators, and hypothetical comparators. The judgment also
considers the interrelationship between the use of comparators and the shifting burden of proof in
section 136 of the Equality Act 2010.
The Employment Appeal Tribunal held that the majority of the Employment Tribunal in this case did
not misdirect itself in law, did not reach a perverse decision, and gave adequate reasons for its
conclusions. Accordingly, the appeal is dismissed.
Judgment approved by the court for a hand down Martin v St Francis Xavier
THE HONOURABLE MR JUSTICE CAVANAGH:
Introduction
1. This is an appeal from the decision of the Employment Tribunal (EJ Wright, Ms M Foster-
Norman and Mrs S Dengate, sitting at London South, “the Tribunal”) sent to the parties and entered
in the Register on 24 September 2021, in which the Tribunal, by a majority (“the Majority”), rejected
the Appellant’s claims of direct race discrimination and constructive unfair dismissal. Permission to
proceed to a full hearing was granted by HHJ Tayler, following a rule 3(10) hearing on 28 March
2023.
2. The Respondent is a Sixth Form College for students aged 16-19, based in Clapham South,
London. The Appellant was employed by the Respondent as a teacher of English and Head of Faculty
(Pastoral). He had been employed by the Respondent since 28 August 2001. The Appellant is black
British of Jamaican heritage. In 2017, he was subjected to a disciplinary investigation and then
attended a disciplinary hearing. The allegation against him was that he had been late on a number of
occasions. The investigation had commenced after an incident on 26 May 2017 when he had arrived
late on a day when a group of his students were taking public examinations in English Language and
Literature. On that day, clean copies of the set texts could not be located and senior management at
the College had to embark upon a search for them. For obvious reasons, this caused alarm. The
Appellant could have assisted with that search, as he knew where the set texts were, though he was
not primarily responsible for making sure that they were available at the start of the exam. The
Appellant arrived a few minutes after the exams were due to start and helped to find the clean copies.
The exams started late. On 8 September 2017, immediately after the disciplinary hearing but before
the decision had been announced, the Appellant resigned with immediate effect, claiming that he had
been constructively unfairly dismissed.
3. Before the Tribunal, the Appellant contended that he had been unlawfully discriminated
against on the ground of his race by being subjected to a detriment, contrary to sections 13 and
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