How to Identify Comparator in Discrimination Case

In discrimination claims under the Equality Act 2010, a comparator is a person used to assess whether an individual has been treated less favourably because of a protected characteristic. Identifying the correct comparator is often central to proving or defending a claim in an Employment Tribunal.

The comparator analysis helps determine whether the treatment was genuinely discriminatory or whether it would have occurred regardless of the protected characteristic. In many cases, disputes about the appropriate comparator are decisive in the outcome of a case.

What Is a Comparator in a Discrimination Case?

A comparator is an actual or hypothetical person used to assess how the claimant was treated.

There are two main types:

Actual comparator

A real person in similar circumstances who does not share the claimant's protected characteristic.

Hypothetical comparator

A constructed comparison based on how a person without the protected characteristic would have been treated in the same situation.

The tribunal uses comparators to test whether the treatment was “less favourable” and linked to a protected characteristic.

Why Identifying the Correct Comparator Matters

Correct comparator selection is essential because:

• It determines whether discrimination can be inferred
• It helps establish “less favourable treatment”
• It influences burden of proof shifting under discrimination law
• It can significantly affect compensation outcomes

An incorrect comparator can weaken or undermine a claim entirely.

Legal Framework for Comparator Analysis

Comparator rules arise from case law interpreting the Equality Act 2010. Tribunals assess whether a claimant has been treated less favourably “because of” a protected characteristic such as:

• Age
• Sex
• Race
• Disability
• Religion or belief
• Sexual orientation
• Pregnancy and maternity
• Gender reassignment

The comparator must be used to isolate whether the protected characteristic influenced the treatment.

Step 1: Define the Material Circumstances

The comparator must be in materially similar circumstances. This includes:

• Same or similar role
• Similar responsibilities
• Similar performance or conduct history
• Similar workplace context
• Same decision-maker (where relevant)

Differences that are relevant to the employer's decision-making process may disqualify a proposed comparator.

Step 2: Choose Between Actual and Hypothetical Comparators

When to use an actual comparator

An actual comparator is useful where:

• Another employee was treated differently in a similar situation
• There is clear documentary evidence of differential treatment
• The workplace has consistent records of disciplinary or HR outcomes

When to use a hypothetical comparator

A hypothetical comparator is used where:

• No direct real-world comparator exists
• The claimant's situation is unique
• The tribunal must assess how a “reasonable” employer would have acted

Hypothetical comparators are common in complex discrimination claims.

Step 3: Ensure Relevant Similarity

A comparator must be sufficiently similar in all material respects except for the protected characteristic.

Tribunals consider factors such as:

• Job role and seniority
• Conduct or performance issues
• Employer policies applied
• Decision-making context
• Disciplinary history

If differences are too significant, the comparator will be rejected.

Step 4: Identify Proper Comparators for Different Types of Discrimination

Direct discrimination

The comparator is someone who does not share the protected characteristic but is otherwise in a similar situation.

Example:
A female employee disciplined for lateness compared with a male employee who was not disciplined for similar lateness.

Disability discrimination

The comparator may need adjustment because of disability-related circumstances. Tribunals may consider how someone without the disability-related effects would have been treated.

Indirect discrimination

Comparator analysis focuses less on individuals and more on group disadvantage caused by a policy or practice.

Victimisation

Comparators may include employees who did not carry out a “protected act” under the Equality Act.

Step 5: Consider “Material Difference” Arguments

Employers often argue that proposed comparators are not valid because of material differences.

Common arguments include:

• Different performance records
• Different disciplinary history
• Different managers or departments
• Different levels of responsibility
• Different timing of events

Tribunals carefully assess whether these differences are legally relevant.

Step 6: Use Evidence to Support Comparator Selection

Comparator arguments must be evidence-based. Useful evidence includes:

• HR records and disciplinary outcomes
• Emails and internal communications
• Performance reviews
• Policy documents
• Witness statements
• Statistical workplace data (in indirect discrimination cases)

The burden of proof may shift if facts suggest possible discrimination.

Step 7: Hypothetical Comparator Construction

Where no actual comparator exists, tribunals construct a hypothetical one by asking:

• How would a non-protected characteristic employee have been treated?
• Would the outcome have been the same?
• What is the most appropriate baseline for comparison?

This requires careful analysis of workplace norms and employer policies.

Step 8: Common Comparator Mistakes

Frequent errors in discrimination claims include:

• Choosing employees in different roles or grades
• Ignoring relevant disciplinary history
• Failing to account for contextual differences
• Using comparators from different departments without justification
• Assuming similarity without evidence

Poor comparator selection is a common reason claims fail.

Step 9: Tribunal Approach to Comparators

Employment Tribunals:

• Focus on substance rather than labels
• Assess material circumstances holistically
• Consider both factual and hypothetical comparisons
• Evaluate whether differences justify different treatment

The comparator is a tool, not a rigid requirement.

Step 10: Impact on Compensation and Liability

Comparator analysis affects:

• Whether discrimination is established
• The strength of liability findings
• Injury to feelings awards
• Financial loss compensation
• Overall credibility of the claim

A strong comparator case often leads to higher settlement or award values.

Practical Steps to Identify a Comparator

A structured approach includes:

• Identifying the alleged discriminatory act
• Reviewing workplace policies and treatment records
• Searching for employees in similar roles and circumstances
• Comparing disciplinary or HR outcomes
• Assessing material differences objectively
• Considering hypothetical alternatives where necessary
• Gathering supporting documentary evidence

Final Thoughts

Identifying the correct comparator in a discrimination case under the Equality Act 2010 is central to establishing whether less favourable treatment has occurred. The comparator must share materially similar circumstances, with differences limited to the protected characteristic.

Employment Tribunals carefully assess both actual and hypothetical comparators, focusing on whether any differences justify different treatment. Accurate comparator selection supported by evidence is often decisive in discrimination litigation.