Cyril Adjei examines the complexities of hypothetical comparators
At the heart of all direct discrimination claims is the requirement to make a comparison. This results from the need to prove “less favourable treatment” because of a prohibited ground. In making this comparison, it is often easier to point to a hypothetical comparator, as opposed to an actual one.
These two points apply to direct disability discrimination complaints, but two recent cases—Aylott v Stockton-On-Tees BC [2010] EWCA Civ 910 and Aitken v Commissioner of Police of the Metropolis, 21 June [2010] UKEAT 0226/09/2106, [2010] All ER (D) 107 (Aug)—result in uncertainty as to what characteristic should be part of the hypothetical comparator in such claims.
Both these cases were decided under the Disability Discrimination Act 1995 (DDA 1995), more particularly, s 3A(5): “A person directly discriminates against a disabled person if, on the ground of the disabled person’s disability, he treats the disabled person less favourably than he treats or would treat a person not having that particular disability whose relevant circumstances, including his abilities, are the same as, or not materially
