In almost all areas of discrimination law, someone who claims that they have been unlawfully discriminated against will have to demonstrate ‘less favourable treatment’ by identifying a person outside their protected group who was treated better as a result of not being in the protected group. This person is called a comparator.

In a limited number of areas, a comparator need not be identified, such as discrimination on grounds relating to pregnancy.

The proper identification of a comparator is important as without it, an employee who alleges unlawful, less favourable treatment, cannot succeed in their claim against their employer. If there is someone doing the same job in all material respects then he or she can be a ‘real comparator’. There are occasions where a real comparator does not exist, and in many discrimination strands it is possible for an employee to compare themselves with a ‘hypothetical comparator’, ie not a real comparator.

The underlying basis for this in the various discrimination strands is that the comparison is with how the discriminator treats or ‘would treat’ others.

Not all discrimination legislation has been drafted in the same way. In email update 49 we commented on the Equality Bill, which is intended to bring together and harmonise the present anti-discrimination statutes in a single Act, as well as strengthening some of the existing laws.

You can access email update 49 by clicking on the link below:

http://www.justemploymentlaw.co.uk/features/update49

The Employment Appeal Tribunal considered the issue of the ‘correct comparator’ in the case of Carl v The University of Sheffield.

You can access this case by clicking on the link below:

http://www.employmentappeals.gov.uk/Public/Upload/08_0261rjfhLBCEA.doc

This case clarified the interpretation of the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000. The Employment Appeal Tribunal has stated that an employee must point to a real comparator who amounts to a ‘comparable full-time worker’ under Regulation 2(4). It is not possible, in less favourable treatment of part-time workers cases, to use a hypothetical comparator.

The Employment Appeal Tribunal also held that the part-time working must be the effective and predominant cause of the less favourable treatment complained of, but need not be the only cause.

This case may mean that it is potentially more difficult for an employee, who works on a part-time basis, to bring a successful claim under the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000. The reason for this is that the real comparator must be doing the same job.

In the present case, both the Claimant and the comparator taught at the University of Sheffield. It had been held by the Employment Tribunal that though the Claimant taught students at the University (which was similar to the real named comparator) there were differences in what they taught, their job specifications, and how they taught. Accordingly, the Tribunal was able to conclude that the differences in their respective jobs meant that there was no true comparison between the Claimant and her real named comparator in these cases.

This was contrasted by an example of a part-time versus full-time fire fighter. Both are employed to do the same work: to fight fires.

The question of less favourable treatment of part-time workers often arises in relation to holiday entitlement. Employees are often able to point to a real full-time employee who receives more holidays than them. In general terms the pro-rata principle applies. So where, for example an employee works three days per week then they would be entitled to 3/5 of the annual leave as compared to their real named comparator. There can be complications where a particular part-time employee does or does not work on a Monday (as this is the day when the majority of public holidays fall). In the case of McMenemy v Capita Business Services Ltd the Court of Session held, on the particular facts of that case, that the pro-rata principle need not apply where there is a clear policy as to entitlement to public holidays.

You can access this case by clicking on the following link:

http://www.bailii.org/scot/cases/ScotCS/2007/CSIH_25.html

Please note that employees are entitled as a minimum to 5.6 weeks annual leave in terms of the Working Time Regulations. There is no separate entitlement to public holidays over and above this minimum.

If you have any issues in relation to part-time workers that you would like to discuss then Just Employment Law will be pleased to assist.

Just Employment Law Ltd is an Appointed Representative of CBG Insurance Brokers Ltd.
Just Employment Law is not a firm of solicitors.