If an employee claims that their employer discriminated directly against them, it must be proven that the treatment was less favourable than the treatment which would be afforded to others due to the employee’s protected characteristic. In order for the tribunal to approach this, a comparator must be utilised.

A comparator is a tool used by the tribunal to compare treatment of the claimant to someone who should be in the same or not materially different circumstances but who does not have the protected characteristic of the claimant. The purpose of employing a comparator is to enable the claimant to show that the reason for their treatment was their protected characteristic and nothing else.

An actual person working for the employer can be referenced as the comparator or, in the event this is not possible, a hypothetical comparator is considered instead.

However, a comparator, whether real or hypothetical, is not always applicable. In cases of discrimination relating to pregnancy or maternity, covered under Article 5A of the Sex Discrimination (NI) Order 1976, there is no requirement for a comparator to be utilised by the tribunal.

Legal Island Training Resources for Your Staff

Diversity & Inclusion - The Importance of Conscious Inclusion | eLearning Course

Are you responsible for overseeing the implementation of training for all employees on diversity and inclusion policies in your organisation? Legal Island’s Diversity & Inclusion - The Importance of Conscious Inclusion eLearning course will help your staff understand the importance of inclusive behaviour in the workplace and the value it brings to both your staff and your organisation. This course is tailored specifically to your jurisdiction and provides comprehensive compliance training for all employees within your organisation.

Click here to view our course on Diversity and Inclusion in the workplace.