In the case of Key Care Support Ltd v Johnson an agency worker, on a zero hours contract, accepted a night shift at Mather Fold House, a residential unit. Key Care Support supplies healthcare workers to its clients. Following that night shift the agency worker, Mr Johnson, was asked by Ms Rachel Wright of the agency how it had gone.  He had informed her that he did not like working at Mather Fold House for three reasons, one of which being that he had been racially abused whilst working there by an agency worker supplied by a different agency.

After a further shift at Mather Fold House, he was once again contacted by Ms Wright, asking how the shift had gone, and had reported a further incident of racial abuse, by a female member of staff supplied by another agency, who had stated that she refused to work with black people.

The Tribunal found that any reasonable employer would have clearly identified this as a complaint requiring investigation and that the failure to action a complaint amounted to less favourable treatment; further, the agency was unable to show a non-discriminatory reason for its failure to investigate Johnson’s complaint, and so the claim succeeded.

The agency appealed, contending that the ET failed to identify an actual or hypothetical comparator, such that it could not fairly conclude that Johnson had received less favourable treatment because of his race, and that its conclusions were perverse. Accordingly, the matter would be remitted to a fresh ET to determine liability and, if appropriate, remedy.