What is a comparator?
A comparator is another person who was in a similar position to you and who didn’t suffer discrimination or victimisation.
What is a comparator, direct discrimination disability related
To establish discrimination or victimisation you must show that you were treated less favourably than a hypothetical comparator would have been treated and/or an actual comparator was treated.
Identifying a comparator
Ideally you will be able to identify an actual comparator who has been treated more favourably than you.
Where no actual comparator can be identified you must construct a hypothetical comparator.
For example: Mary could make a gender discrimination complaint on the basis of a hypothetical male comparator who had the same qualifications as her, and who would have been shortlisted, had he applied.
Very often you will be able to find an actual comparator or you will have a feeling that one exists. In fact, it is this knowledge that has probably prompted you to make the discrimination complaint in the first place. You can consider asking questions of the Respondent in the Questionnaire Procedure which unearths detail about any comparators. (You can also ask about these persons through the Notice for Discovery and Notice for Additional Information processes - see How to gather information from the Respondent.
Note: You do not need a comparator where you are alleging discrimination on the grounds of pregnancy or maternity leave. In that case you must simply prove that the decision of the Respondent was for the reasons of pregnancy or maternity leave.
Identifying pools of disadvantaged persons
Where you allege indirect discrimination you will be required to identify a pool of persons to which you belong and who share the relevant protected characteristic, for example female/gender, who suffer a disadvantage in comparison to a pool who do not share the relevant protected characteristic because of the policy, criterion or practice that has been applied to you.
For example: Mary was not shortlisted because she didn’t meet a requirement of the job specification to have worked on a full time basis in that line of work for three of the last four years.
Such a requirement may be more difficult for women to meet because they may have come out of the workforce or reduced their hours to start a family. The claim would then likely centre on whether this was a justifiable rule.
Note: The focus is increasingly on the ‘hypothetical’ comparator except in claims relating to equal pay.
You do not need a comparator if alleging discrimination on the grounds of pregnancy or maternity leave. In that case you must simply prove that the decision of the Respondent was for the reasons of pregnancy or maternity leave.