Identifying an appropriate comparator is one of the most important aspects of a direct discrimination claim under UK equality law. Although the legal test may appear straightforward, in practice it requires careful, fact‑sensitive analysis.
In simple terms, a comparator is another person whose treatment can be compared with that of the claimant. This may be someone who works for the same employer, went through the same recruitment process, or was subject to the same policies. The purpose is to understand whether the claimant was treated less favourably because of a protected characteristic.
Actual vs. evidential comparators
There are two types of comparators commonly discussed in discrimination claims:
- Actual comparators: real individuals in similar circumstances to the claimant.
- Evidential comparators: individuals whose circumstances are not identical but sufficiently similar that their treatment can help a tribunal understand whether discriminatory reasoning may have been present.
Tribunals recognise that workplaces vary widely and that a “perfect match” is rare. For that reason, evidential comparators can be just as important as actual comparators when exploring whether a difference in treatment is linked to discrimination.
Material similarity matters
A key question for tribunals is whether the comparator’s situation is materially similar to the claimant’s. Differences in role, seniority, qualifications, conduct, or context may be relevant to determining whether the comparison is fair. What counts as “material” will depend on the facts of each case.
Why this area remains complex
Employment tribunals have broad discretion when evaluating comparators, and the exercise often involves:
- distinguishing between relevant and irrelevant differences;
- assessing workplace practices or patterns of behaviour;
- examining the wider context, not just a single incident.
This means employers should maintain clear notes, consistent decision‑making processes and transparent criteria for recruitment, performance management and disciplinary action.
Supporting individuals and employers
This is an area where clarity really matters. For individuals bringing claims, identifying the wrong comparator may weaken an otherwise strong case. For employers, inconsistent treatment even unintentionally can create significant legal risk.
Bellevue Law Associate Anjali Malik and Mukhtiar Singh from Doughty Street Chambers have recently featured in New Law Journal offering specialist commentary on the role of comparators and the importance of structured analysis in discrimination claims.
You can read the New Law Journal article here (subscription required):
🔗 Close—but close enough? | New Law Journal | The leading weekly legal magazine
