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 comparator.
A comparator is a person outside their protected group who was treated better as a result of not being in the protected group.
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.