Who is the correct comparator when a male manager enters the women’s toilets and shouts at a woman on her break whom he believes to be 'skiving'?
The employment tribunal held that when a man enters the women's toilets, that (in itself) is an act of sex discrimination.
However, according to the EAT (HHJ McMullen QC), the question for a tribunal to ask is: would the Respondent, in the form of a female manager, with the same robust management style as this manager, treat a male cleaner having the same sensitivity as the Claimant, believed to be 'skiving', in the same way as he treated the Claimant?
The finding of sex discrimination was accordingly set aside.
[Thanks to Ed McFarlane for telling me about this case]
Kettle Produce v Ward