The test for less favourable treatment is clearly an objective one and the question that is to be asked is whether the complainant would have been treated differently more favourably had it not been for his sex. Thus, the tribunal must ask what the ‘conscious or subconscious reason for treating the claimant less favourably was’ (Nagarajan v. London Regional Transport)1. The decision of less favourable treatment is for the tribunal to decide and it is not a difficult one.
In order to determine less favourable treatment, a comparison with an actual or hypothetical comparator is to be made, however it is necessary that the relevant circumstances of the complainant and the comparative group are same or not materially different. Thus, in Shamoon v Chief Constable of the Royal Ulster Constabulary2, it was stated that
From s.63A and Igen v Wong3 it is clear that the evidential burden to show facts from which Employment Tribunal can conclude that the employer has committed an act of discrimination and if such burden is met then the legal burden shifts to the employer who has to show that the reason for the treatment was not related in any way with claimant’s sex. Thus, if an inadequate explanation is provided the Employment Tribunal must fina that the employer committed an act of unlawful discrimination.
In the current scenario it is quite evident that Graham has received less favourable treatment on the ground of his sex and this is clear from what has been said by IRU in their reason for rejecting Graham. Furthermore, if a hypothetical comparator is drawn then in the same circumstances a woman would have received more favourable treatment and thus direct discrimination is established.
The remedies that might be available to Graham are a recommendation that IRU should take action so as to reduce the effect of the discrimination. Further, he could receive compensation which could include pecuniary losses if any and injury to feelings.