The 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 a person without it (known as the “comparator”) and showing that it is “less favourable”. Discrimination law looks for different treatment. Unfair treatment is not enough. It is a good idea to keep asking “reason why” questions, for example, why was the claimant treated like this? Was one reason the presence of the protected characteristic, for example gender? Had the claimant been a man, would he have been treated in the same way?




The comparator need not be a real person. It can be a hypothetical person, but there must be no significant difference between the comparator’s situation and that of the individual claiming to have suffered discrimination, apart from the presence of the protected characteristic. 




There is an exception for pregnancy and maternity discrimination during the “protected period” (see page 206). No comparator is needed. This is explained below.