Imagine you’re a seasoned professional offered an exciting new role with a £110,000 pay package. It sounds generous, but you feel it doesn’t quite recognise your value. You negotiate, but the employer won’t budge, so you ultimately turn down the offer.
Later, you learn the company filled the position with someone else for a £100,000 salary, less than what you were offered. However, to secure that hire they paid a recruitment agency £15,000 in fees, making the total cost to the employer £115,000, which is more than they were willing to spend on you.
Would you feel unfairly treated?
This is exactly the scenario at the heart of the recent case of Thomas v Tindall Riley & Co.Ltd.
Ms. H Thomas believed this difference amounted to unlawful discrimination, and her case shines a light on what “less favourable treatment” truly means under UK employment law.
The Case Background: Salary Offer vs Recruitment Cost
In January 2023, Ms. Thomas was offered a senior position by Tindall Riley & Co Ltd with a total remuneration package of £110,000. This package included a base salary (reportedly around £100,000) plus a signing bonus of about £10,000.
Ms. Thomas was in her mid-career, and importantly, she was around ten years older than the candidate who would later be hired instead. Feeling that £110,000 was too low and did not adequately reflect her experience and value, Ms. Thomas declined the offer, hoping for a higher figure.
After Ms. Thomas walked away, the company turned to the job market to fill the role. In due course, they hired another candidate (approximately ten years younger than Ms. Thomas) at a salary of £100,000 – £10,000 less than what had been offered to Ms. Thomas.
However, this new hire came through a recruitment agency, which charged Tindall Riley a £15,000 fee for finding and placing the candidate. In effect, the employer ended up spending £115,000 in total to get the new person on board (the £100k salary plus £15k in agency costs).
When Ms. Thomas learned of this, she felt a sense of injustice. From her perspective, the company had been willing to invest £115,000 in a younger replacement, yet only £110,000 in her.
She believed this discrepancy was because of her age, essentially that she was an older candidate who had been undervalued compared to a younger one.
Acting on this belief, Ms. Thomas brought a claim of direct age discrimination under the Equality Act 2010, arguing that the employer had treated her less favourably than the younger comparator by offering her a lower effective package (£110k vs £115k).
Claim of Discrimination and the Legal Test
Under section 13 of the Equality Act 2010, direct discrimination occurs if an employer treats someone less favourably because of a protected characteristic (such as age) compared to how it treats or would treat others in similar circumstances.
A cornerstone of any direct discrimination claim is the need for a valid comparator, a person of a different age (or other protected trait) in materially similar circumstances, and evidence that the claimant was treated worse than that comparator.
In Ms. Thomas’s case, her chosen comparator was the younger candidate who ultimately got the job. The key question was: Did Tindall Riley treat Ms. Thomas worse (less favourably) than the younger hire?
Ms. Thomas contended that yes, she had been treated worse, after all, the company was effectively prepared to spend £5,000 more on the other candidate. However, it’s critical to distinguish between what the employee/candidate receives and what costs the employer incurs behind the scenes.
Ms. Thomas received an offer (which she declined) of a higher salary package than the comparator ever received. The new hire’s compensation was actually lower: he received £100,000 with no sign-on bonus, whereas she had been offered £110,000 in total compensation.
The extra £15,000 paid in recruitment fees never went into the new hire’s pocket, it went to the agency. In legal terms, the “treatment” to compare is the offer made to the candidates, not the employer’s total expenditure.
So the factual reality was that Ms. Thomas had been offered more money for the job than her comparator was. This raised a fundamental issue for her claim: could it be said she was truly treated “less favourably”?
Tribunal Outcome: No Less Favourable Treatment Found
When Ms. Thomas’s claim went before the Employment Tribunal (ET), the tribunal took a hard look at the situation. They concluded that, on the facts, Ms. Thomas had not been treated worse than her comparator at all.
Quite the opposite, she was offered a more generous remuneration package than the younger candidate. The employer’s additional recruitment cost (the £15k agency fee) was deemed irrelevant to the question of how the two individuals were treated, since it did not benefit the comparator directly or form part of his pay.
The tribunal viewed Ms. Thomas’s argument as essentially saying she should have gotten an even higher offer (matching the employer’s total spend on the other hire), rather than showing she was disadvantaged.
Because she could not demonstrate any actual disadvantage in how she was treated compared to the younger candidate, her claim lacked the essential element of less favourable treatment.
As a result, the tribunal struck out her age discrimination claim, finding that it had no reasonable prospect of success.
To put it simply, the tribunal decided there was no valid case of discrimination here: Ms. Thomas was offered more, not less, than the person she compared herself to.
An employer spending extra money on recruitment fees doesn’t equate to giving a better benefit to the other employee. Thus, there was no unfair treatment because of age in the eyes of the law.
The Appeal to the EAT: Upholding the Decision
Unwilling to accept the tribunal’s strike-out, Ms. Thomas appealed to the Employment Appeal Tribunal (EAT). The appeal focused on the same point: whether her situation could amount to direct age discrimination under the law.
In October 2025, the EAT (with High Court Judge Bruce Carr KC sitting) examined the case. The EAT firmly upheld the tribunal’s decision, agreeing that Ms. Thomas’s claim was fundamentally flawed.
The EAT reiterated that under Section 13 of the Equality Act 2010, a claimant must show they were treated less favourably than the comparator to establish direct discrimination.
This is a strict requirement – without a worse treatment, the discrimination claim cannot get off the ground. In Ms. Thomas’s case, this requirement was not met. She had actually been offered a better deal than her comparator, not a worse one.
As the EAT pointed out, her case was essentially that she deserved to be treated even more generously, which is not the same as being treated badly or unfairly.
In the court’s words, her complaint was that she should have been “still more favourably treated”, not that she was less favoured. A discrimination claim cannot be based on wishing for a higher favour; it must be based on an actual detriment in treatment compared to someone else.
In the EAT’s view, once the irrelevant recruitment fee was set aside, the comparison was straightforward: £110k offered to Ms. Thomas vs £100k to the younger hire. There was no disparity disadvantaging Ms. Thomas – if anything, the disparity was in her favour.
Therefore, her age discrimination claim had no legal basis. One commentary drily noted that this was an unsurprising outcome, as Ms. Thomas’s argument was a rather novel attempt that the courts saw as misconceived.
The bottom line: the employer’s higher overall expenditure on the comparator (due to agency fees) did not equate to treating the comparator better than Ms. Thomas in any actionable way.
Result: The EAT dismissed Ms. Thomas’s appeal. The finding stands that no direct discrimination occurred in this scenario, because no less favourable treatment was identified.
Ms. Thomas had enjoyed a more favourable offer than her comparator, and the law does not compel an employer to match internal costs or potential expenditures across candidates.
Why This Case Matters for UK Employment Law
The Thomas v Tindall Riley case is significant because it clarifies the boundaries of direct discrimination claims, especially in the context of salary negotiations and recruitment practices. It serves as a reminder of what does and does not constitute “less favourable treatment” under the Equality Act 2010.
Clarification of the Comparator Test: This ruling underscores that when comparing treatment between a claimant and a comparator, only the treatment that each individual actually experiences counts.
The focus is on the terms and benefits each person was offered or received. External factors, like how much an employer spends on recruitment, training, or other overheads, do not enter the comparison.
In Ms. Thomas’s case, the relevant comparison was purely offer vs offer (or salary package vs salary package). The additional recruitment fee was a cost to the employer, not a perk to the employee, so it was rightly ignored in assessing Ms. Thomas’s claim.
This sets a helpful precedent: Claimants cannot count an employer’s incidental costs as part of their comparative treatment. In other words, you compare the employee’s deal with the comparator’s deal, nothing more.
Reaffirming the Meaning of “Less Favourable”: The case also reinforces that “less favourable” means genuinely worse from the perspective of the employee. Feeling undervalued or wishing one had a better offer is not enough, there must be a tangible disadvantage.
For HR professionals and employers, this outcome provides some reassurance. It shows that if you offer a candidate a higher salary or better package than another, you won’t be found liable for discrimination on the basis that you might have been willing to pay more in a roundabout way (such as via fees or other costs).
For employees and candidates, it highlights that not every sense of unfairness equates to unlawful discrimination. The law requires a clear cause-and-effect link: the disadvantage (e.g. a lower offer or denial of opportunity) must be because of the protected characteristic.
In this case, that link failed because there was no disadvantage to begin with – thus nothing was “because of age” in terms of treatment.
Impact on Future Claims: This decision may deter would-be claimants from pursuing speculative discrimination claims based on creative comparisons. It illustrates that tribunals are willing to strike out claims early if the basic elements aren’t met.
Direct discrimination cases need a solid foundation: a proper comparator and an actual less favourable outcome. If a claim effectively argues “I should have been given more,” rather than “I was given less,” it’s likely to fall flat as we saw here.
Lawyers and advisors will point to Thomas v Tindall Riley as a clear example when advising clients about the strength of a discrimination complaint in pay negotiations or recruitment scenarios.
Key Takeaways for Employers and Candidates
- For Employers: When structuring offers and negotiating salaries, it’s important to ensure you’re not offering systematically lower terms to someone because of a protected characteristic (like age, gender, etc.).
However, you can take some comfort in Thomas v Tindall Riley, incurring business costs (such as recruitment fees or training expenses) for one hire versus another does not mean you’re treating the individuals differently in terms of their employment terms.
What matters is the offer and treatment each candidate receives. That said, always document your hiring decisions and ensure consistency to defend against any potential discrimination claims.
If one candidate is offered less than another, be sure you have legitimate, non-discriminatory reasons (e.g. differences in experience, market rates, etc.), because unlike Ms. Thomas’s case, many discrimination claims do involve clear disparities in pay or benefits.
In any close call, seek legal advice early to avoid missteps.
- For Employees/Candidates: This case is a reminder to carefully assess what your comparator is actually getting when thinking about discrimination. It’s natural to feel aggrieved if an employer appears to spend more money hiring someone else.
But ask yourself, is the other person really being paid more or treated better, or is the company just spending money in other ways? Only the former counts as potential discrimination.
If you do suspect you’re being underpaid or passed over because of age, gender, or another protected trait, make sure to compare apples to apples, salary to salary, benefits to benefits.
Direct discrimination is about disadvantage. If you’ve not actually been put at a disadvantage relative to a colleague or replacement, a claim will not succeed.
However, if you have experienced genuine less favourable treatment and believe a protected characteristic is the reason, you should absolutely seek legal guidance on your rights.
How Magara Law Can Help
Cases like Thomas v Tindall Riley highlight the complexities of employment discrimination law. It’s not always obvious what counts as unfair treatment under the Equality Act.
If you’re an employer, navigating these issues correctly is crucial, a misstep in how you handle job offers, promotions, or terminations can lead to costly litigation.
If you’re an employee or job candidate, you may sense something is wrong but be unsure whether it crosses the line into unlawful discrimination. Magara Law is here to help in either situation.
At Magara Law, our employment law specialists have extensive experience dealing with discrimination cases, tribunal claims, and workplace disputes. We stay on top of the latest cases like Thomas v Tindall Riley to inform our advice.
Our team can review your situation in detail, whether you’re concerned about a hiring decision, a pay disparity, or any form of unfair treatment at work, and explain your options under the law. We pride ourselves on combining technical expertise with a practical, compassionate approach.
For Employers: We can guide you in structuring offers and processes to minimise legal risks, provide training on equal opportunity best practices, and represent you if a claim is brought.
Thomas v Tindall Riley, for example, underscores the importance of clearly documenting the rationale for compensation decisions. Magara Law can help ensure your business is compliant with the Equality Act and prepared to defend its decisions with evidence if needed.
For Employees: If you believe you’ve been treated unfairly at work or in a hiring process, come talk to us. We will evaluate the facts of your case against the legal standards (like the less favourable treatment test) and give you honest, strategic advice.
If you have a valid claim, we can assist you in pursuing it and fighting for your rights. And if the situation doesn’t meet the legal threshold, we’ll explain why – just as the outcome in Thomas turned on a technical but crucial point – and explore other ways to resolve the issue with your employer.
Contact us for Expert Advice
The story of Ms. Thomas is a cautionary tale: even well-intentioned individuals can misinterpret what the law deems discriminatory. Don’t navigate these tricky waters alone.
Contact Magara Law today for a confidential consultation. Whether you’re seeking proactive advice to prevent issues or need representation to resolve a dispute, our dedicated employment law team is ready to help.
We are committed to ensuring fair and lawful treatment in the workplace, and to standing by your side every step of the way.
Your rights and your peace of mind are our priority. Let Magara Law provide the guidance and advocacy you need. Call 01869 325 883 or email hello@magaralaw.co.uk, today.