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 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, for example, why was the claimant treated like this? Would a person of a different ethnicity or age, for example,have been treated better?


In a claim of 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 individual claiming to have suffered discrimination, 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 218) where no comparator is needed. A claim can be brought based on unfavourable (as opposed to less favourable) treatment — see below.