Latest in Employment Law>Articles>In a Direct Discrimination Claim, What is a Comparator and When is it Required?
In a Direct Discrimination Claim, What is a Comparator and When is it Required?
Published on: 06/06/2023
Issues Covered: Discrimination
Article Authors The main content of this article was provided by the following authors.
Chris Fullerton
Chris Fullerton

In a Direct Discrimination Claim, What is a Comparator and When is it Required?

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.

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Disclaimer The information in this article is provided as part of Legal Island's Employment Law Hub. We regret we are not able to respond to requests for specific legal or HR queries and recommend that professional advice is obtained before relying on information supplied anywhere within this article. This article is correct at 06/06/2023