The need for a comparator

The test for direct discrimination is “comparative”. In other words, it is about comparing the treatment received by the person with the protected characteristic to that received by a person without the protected characteristic (known as the “comparator”) and outlawing less favourable treatment because of the protected characteristic. The comparator need not be a real person. It can be a hypothetical person. However, there must be no material difference between the situation of the comparator and that of the individual claiming to have suffered discrimination, apart from the presence of the protected characteristic.

For example, in Hewage v Grampian Health Board [2012] UKSC 37, a female consultant’s complaints of bullying were met with silence or a wholly inadequate response from her employer, which eventually led to her resignation. By contrast, when a male consultant who took over her responsibilities made the same complaints, the matter was immediately resolved. The Supreme Court accepted that the female consultant could compare her treatment with that of her male colleague and held that the “astounding and inexplicable difference” in treatment amounted to direct sex discrimination.

The exception is pregnancy and maternity discrimination, where no comparator is required. All a woman in this situation needs to show is that she was treated unfavourably because of her pregnancy or maternity. In practice, however, it helps to be able to point to the different treatment given to a worker who is not pregnant, as this helps suggest that the reason for the difference in treatment was pregnancy or maternity (see page 157).