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

Posted in : First Tuesday Q&A NI on 6 June 2023
Chris Fullerton
Arthur Cox NI
Issues covered: Direct Discrimination; Comparator

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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Back to Q&A's This article is correct at 06/06/2023

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Chris Fullerton
Arthur Cox NI

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