Background
Mr Wyc Shing, a senior lecturer at the University of the Arts London, was summarily dismissed after an inappropriate relationship with a mature student, EA, who was not his allocated tutee. The relationship was briefly romantic and included an offer of a ticket to New York. Mr Shing acknowledged that he had made unintentional errors and said he had not understood the institution’s professional-boundaries policy.
He brought claims including race discrimination on the grounds of Chinese ethnic and national origin, relying solely on the university’s allegedly more lenient treatment of two colleagues, G and H. He also challenged the fairness of his dismissal, arguing that HR had improperly influenced the decision. The Employment Tribunal rejected the claims, and Mr Shing appealed.
The Court’s Holding
The EAT dismissed the appeal. It held that the Tribunal was entitled to find that G and H were materially different comparators: the upheld allegations against G were less serious, while H’s final written warning reflected, among other matters, his contrition, apology, recognition of boundaries, and long unblemished service. The Tribunal was also entitled to conclude that neither colleague assisted as an evidential comparator.
The Tribunal did not err by failing expressly to construct a hypothetical comparator. On its findings, there was no evidence that a person otherwise in Mr Shing’s position but of another race would have been treated differently; constructing such a comparator would have been an “empty and arid exercise.” Nor did HR’s limited involvement make the dismissal unfair. Ramphal does not mean that any HR advice invalidates a dismissal; HR may help maintain consistency, and the Tribunal found no undue pressure or improper influence on the decision-maker.
Key Takeaways
- A discrimination claim based solely on actual comparators may fail where the Tribunal permissibly finds their circumstances materially different.
- A Tribunal need not construct a hypothetical comparator where the evidence provides no basis to infer race-based less favourable treatment.
- HR involvement is not automatically unfair: the question is whether it exerts undue pressure or improperly intrudes on the decision-maker’s assessment.
Why It Matters
The decision confirms that comparator analysis remains fact-sensitive. Differences in seriousness, mitigation, contrition and disciplinary history can justify different sanctions without supporting an inference of discrimination.
For employers, the judgment clarifies that HR can appropriately advise on process, legal issues and consistency, including the boundary between misconduct and serious misconduct. The fairness risk arises where HR or another outside actor improperly drives the substantive disciplinary decision.