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Comparators in direct discrimination cases

If you want to make a claim for direct discrimination you need to compare your treatment with the treatment of someone else. This person is called a comparator.

Read this page to find out more about comparators in direct discrimination cases.

What's a comparator?

Direct discrimination is when you’re treated worse than someone else for certain reasons - for example, because you’re disabled or because you’re black. The Equality Act 2010 calls these reasons protected characteristics.

If you want to show you’ve suffered direct discrimination, you need to compare your treatment with the treatment of someone else who doesn't have the same protected characteristic as you. The Equality Act calls this person a comparator.

The comparator is someone who’s in the same or similar enough situation to you, but who doesn’t have the same protected characteristic.

What's meant by someone in a similar enough situation?

It’s not necessary for you to be in an identical situation as the comparator. But there must be sufficient similarities between the two of you to show that the reason for the worse treatment is the protected characteristic and not something else.

Example

You’re a Muslim and your employer refuses to allow you time off work for Friday prayer. One of your colleagues is a Christian and attends a bible study group on Wednesdays after work. She’s asked for permission to leave an hour early to attend these groups and your employer has agreed to this.

You could compare your situation with your colleague as she also needs regular time off work for religious reasons. As a Christian, she doesn't have the same protected characteristic as you, so you can use her as an example to show discrimination.

If there isn’t an actual person you can compare yourself with

The comparator can be a real person. But, sometimes it’s not possible to find a real person who’s in the same or similar enough situation to you, because the situation you're in has never happened before. If this is the case, you can use a hypothetical comparator.

You may be able to find someone whose circumstances are similar enough to show your treatment was because of your protected characteristic.

Example

You’re a transsexual person. You work in a restaurant and one day you make a mistake on the till which results in a small financial loss to your employer. Because of this mistake, your employer dismisses you. This situation has never happened before so there’s no actual person you can compare yourself with. But six months earlier, your employer gave a written warning to another worker for taking home some food without permission.

Because this was a similar situation, you can use the treatment of this worker to show that the employer would not have dismissed someone who is not transsexual for making a till error.

You can use the treatment of several other people as evidence

In other situations, you may need to get evidence about the treatment of several other people to show that someone in a similar situation, but without your protected characteristic, would have been treated better.

Example

You’re a young man of Pakistani origin and you’ve recently enrolled on a computer course at a business college. You were late for the first three classes. The college manager has told you that your late arrival disturbs the concentration of the other students and that if you’re late again you would have to leave the course without getting your money back.

This has never happened before at the college so there isn’t a real comparator. But there have been two slightly similar situations involving two white students. On one occasion one student arrived slightly drunk in class which disrupted the teaching. The other student left the class 30 minutes early a couple of times. None of these two students got the same final warning.

You can use the treatment of these two students to show how someone who’s not of Pakistani origin would have been treated in your situation.

If it’s obvious you’ve been discriminated against

Sometimes it’s possible to show you were discriminated against just by concentrating on the reason for your treatment. If it’s clear you were treated badly because of a protected characteristic, the court can find you’ve been discriminated against without having to look at evidence about a comparator.

Example

You’re thinking about having a sex change and go to your GP for advice. However, your GP refuses to talk to you about it as he says he doesn’t approve of gender reassignment. In this case it’s seems clear that you were treated worse because of your protected characteristic of gender reassignment. It may be enough to say this to show you’ve been discriminated against.

Example

You’re an Irish Traveller. A pub landlord refuses to serve you as he says Gypsies and Travellers always cause trouble. Again you may not need to find a comparator to show you were discriminated against.

Finding a comparator in disability discrimination cases

If you’re directly discriminated against because of disability, the comparator is someone who doesn't share your disability but who has the same abilities and skills as you. The comparator can be someone who's not disabled or someone with a different disability.

Example

You can type 50 words per minute using an adapted keyboard, but only 30 words per minute on a normal keyboard. If you're discriminated against when applying for a job, your comparator would be someone who doesn't share your disability but who can also type 50 words per minute using a normal keyboard.

Next steps

Other useful information

Equality Advisory Support Service (EASS)

If you have experienced discrimination, you can get help from the EASS discrimination helpline.

Equality and Human Rights Commission (EHRC)

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