Need for a comparator

The test for direct discrimination is “comparative”. In other words, it is about comparing the treatment of the person with the protected characteristic to that of someone without it (called the “comparator”) and concluding that the treatment is “less favourable”. In other words, discrimination law looks for different treatment. Unfair treatment is not enough. It is a good idea to keep asking “reason why” questions: why was the claimant treated like this? Would a person of a different, say, ethnicity, age, or sex have been treated better?

In a claim alleging direct discrimination, the comparator need not be a real person. They can be a hypothetical person. But there must be no significant difference between the comparator’s situation and that of the target of the less favourable treatment, apart from the protected characteristic. The test asks how a hypothetical person without the protected characteristic would have been treated.

There is an exception for pregnancy and maternity discrimination during the “protected period” (see page 229) where no comparator is needed. In these cases, a claim can be brought based on unfavourable (as opposed to less favourable) treatment — see below.