Employment Appeal Tribunal Clarifies Role of HR in Dismissals
The EAT has ruled on the permissible extent of HR involvement in dismissal cases and the requirements for using hypothetical comparators in discrimination claims.
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The Employment Appeal Tribunal (EAT) has delivered a significant judgment in Shing v University of the Arts London, clarifying the boundaries of HR involvement in disciplinary processes and the legal requirements regarding hypothetical comparators in discrimination claims.
The Background of the Dispute
The claimant, a former senior lecturer, was dismissed following an inappropriate romantic relationship with a student. He subsequently brought claims for unfair dismissal and race discrimination. The claimant argued that he had been treated more harshly than two colleagues, identified as G and H, who had also faced disciplinary action.
HR Involvement in Dismissal Decisions
A key aspect of the appeal concerned the role of HR in the disciplinary process. The claimant relied on the decision in Ramphal v Department of Transport, suggesting that any intervention by HR in a decision to dismiss renders the process inherently unfair.
The EAT rejected this interpretation. Deputy Judge John Bowers KC noted that the Ramphal decision should not be read as a blanket injunction against HR involvement. The judgment highlights that HR departments play a vital role in ensuring consistency across an organisation. Provided HR avoids exerting undue pressure or straying into areas of culpability, their involvement does not automatically invalidate a dismissal.
Hypothetical Comparators in Discrimination Claims
The claimant also contended that the tribunal erred by failing to consider a hypothetical comparator for his race discrimination claim. The EAT dismissed this argument. It held that the tribunal is not required to engage in an empty or arid exercise. In this instance, because the circumstances of the other employees were materially different and no evidence suggested race played a role in the decision, the construction of a hypothetical comparator would have been futile.
The decision reinforces the principle that tribunals should focus on the evidence and the specific reasons for the treatment received, rather than being forced to construct theoretical comparisons where the factual basis for doing so is absent.
Read the entire judgment here: Shing v University of the Arts London [2026] EAT 154
