Shing v University of the Arts London: EAT rejects comparator and HR involvement challenges

The Employment Appeal Tribunal has dismissed an appeal by a former senior lecturer at the University of the Arts London (UAL), ruling that a tribunal was not obliged to construct a hypothetical comparator where the exercise would have been pointless. The judgement also clarifies the limits of Ramphal v Department of Transport on HR involvement in dismissal decisions.

In Shing v University of the Arts London [2026] EAT 154, John Bowers KC, sitting as a Deputy High Court Judge, upheld the employment tribunal's rejection of race discrimination and unfair dismissal claims.

Background

Mr Shing, who is Chinese, was a senior lecturer across UAL's Chelsea, Camberwell and Wimbledon colleges. He was summarily dismissed after a relationship with a mature student, although he had never been her allocated tutor. During the disciplinary process he acknowledged making "unintentional errors" and expressed willingness to undertake training on professional boundaries.

His race discrimination claim rested solely on a comparison with two colleagues, G and H, who he said had been treated more leniently for similar misconduct.

Comparators

The tribunal found that the circumstances of G and H were materially different, so neither qualified as a statutory comparator under the Equality Act 2010. Nor did they assist as evidential comparators. Only two allegations against G were upheld, which were judged less serious than the conduct found against Mr Shing. H received a final written warning, reflecting his apology, his acknowledgement of the boundaries required and his long unblemished service.

For the appellant, Ms E Cho argued that the tribunal had erred by failing to determine how a hypothetical comparator would have been treated, a question that appeared on the agreed list of issues. She relied on Balamoody, Shamoon and Jones v Secretary of State.

The Deputy Judge accepted that the tribunal had not addressed the point in terms but held that this was not a fatal flaw. Citing Bahl v Law Society, he noted that failing to identify a hypothetical comparator is not itself an error of law. Because the claimant's case had been advanced entirely through G and H, and his earlier counsel had conceded that race did not operate on the minds of the decision makers, a hypothetical comparator would have been merely someone like Mr Shing set against the same two cases. That would have been "an entirely empty and arid exercise".

HR involvement and Ramphal

On unfair dismissal, the appellant argued that the tribunal had failed to follow Ramphal, which was said to bar HR from involvement in dismissal decisions. The tribunal had expressed doubt about the EAT's remarks at paragraph 55 of that decision, noting that Chhabra v West London Mental Health NHS Trust concerned a tightly drawn contractual procedure.

The Deputy Judge said the tribunal had not treated parts of Ramphal as obiter but had been entitled to question whether its dicta went too far. He read the ratio of the case as being that undue pressure from HR, or anyone outside the proper process, may be weighed in assessing fairness, with the weight depending on the facts. Paragraph 55 was not intended as a comprehensive guide to what is permissible.

He went further, observing that HR can properly advise on the distinction between misconduct and serious misconduct. Without such input, he said, it would be difficult for an organisation to maintain consistency between dismissing officers, a concern that arose in this very case.

In any event, the point was moot. The tribunal had found no improper pressure. The HR manager's email showed none, and his role went no further than drafting a letter for the decision maker to send after the decision to dismiss had been made. No report had been altered. The decision was then ratified by the university's vice-chancellor.

Other points

The decision maker had died before the tribunal hearing, so the tribunal reconstructed his reasoning from contemporaneous documents. The Deputy Judge found no error in that approach, nor any misapplication of the burden of proof principles in Royal Mail Group v Efobi. Referring to DPP v Greenberg, he stressed that appellate bodies should be slow to infer error where the correct legal principles have been set out.

The appeal was dismissed on all grounds. Mr Shing was represented pro bono by Ms E Cho, and UAL by Mr A Ohringer.