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. Discrimination law looks for different treatment. Unfair treatment is not enough. It is a good idea to keep asking “but for” questions. For example, “if the member had 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 situation of the comparator and that of the individual claiming to have suffered discrimination, apart from the presence of the protected characteristic. For example:

The exception is pregnancy and maternity discrimination during the protected period, where no comparator is required. All a woman in this situation must show is that she was treated unfavourably because of her pregnancy or maternity. In practice, it helps a lot to be able to point to the different treatment of a comparable male colleague or a female worker who is not pregnant, because this helps to suggest that the reason for the difference in treatment must have been pregnancy or maternity (see page 150).