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The need for a comparator
[ch 7: page 236]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 it (known as the “comparator”). 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 comparator’s situation and that of the individual claiming to have suffered discrimination, apart from the presence of the protected characteristic.
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.
Hewage v Grampian Health Board [2012] UKSC 37
There is an exception for pregnancy and maternity discrimination during the “protected period” (see page 225). No comparator is required for this type of discrimination. Instead, all the woman must show is that she was treated unfavourably because of her pregnancy or maternity. In practice, it helps 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 strengthen the argument that the reason for the difference in treatment must have been pregnancy or maternity.