the disabled person should be compared. That person may be real or hypothetical (see paragraph 4.18).
Identifying comparators in respect of direct
discrimination
4.13 In determining whether a disabled person has been treated less favourably in the context of direct
discrimination, his or her treatment must be compared with that of an appropriate comparator. This must be someone who does not have the same disability. It could be a non-disabled person or a person with other
disabilities.
A person who becomes disabled takes six months' sick leave because of his disability, and is dismissed by his employer. A non-disabled fellow employee also takes six months' sick leave (because he has broken his leg) but is not dismissed. The difference in
treatment is attributable to the employer's unwillingness to employ disabled staff and the
treatment is therefore on the ground of his disability. The non-disabled employee is an appropriate
comparator in the context of direct discrimination because his relevant circumstances are the same as those of the disabled person. It is the fact of having taken six months' sick leave which is relevant in these circumstances. As the disabled person has been treated less favourably than the comparator, this is direct discrimination.
4.14 It follows that, in the great majority of cases, some
difference will exist between the circumstances (including the abilities) of the comparator and those of the disabled person - there is no need to find a comparator whose circumstances are the same as those of the disabled person in every respect. What matters is that the comparator's relevant circumstances (including his or her abilities) must be the same as, or not materially different from, those of the disabled person.
In the previous example, the position would be different if the employer's policy was to dismiss any member of staff who had been off sick for six months, and that policy was applied equally to disabled and non-disabled staff. In this case there would be no direct discrimination because the disabled person would not have been treated less favourably than the comparator - both would have been dismissed.
Nevertheless, there may be a claim for failure to make reasonable adjustments to the policy, for example by allowing disability leave (see paragraph 4.25). In
addition, the employer's policy may give rise to a claim for disability-related discrimination (see paragraph 4.27).
4.15 Once an appropriate comparator is identified, it is clear that the situation described in the example at paragraph 4.8 amounts to direct discrimination:
In the example about the blind person who is not short-listed for a job involving computers, there is direct discrimination because the disabled person was treated less favourably on the ground of the person's disability than an appropriate comparator (that is, a person who is not blind but who has the same abilities to do the job as the blind applicant): such a person would not have been rejected out of hand without consideration of his or her individual abilities.
4.16 The examples of direct discrimination in paragraph 4.9 also become clearer when the appropriate comparator is identified in each case:
In the example about the disabled person with a severe facial disfigurement who applies to be a sales representative, there is direct discrimination because the disabled person was treated less favourably on the ground of the person's disability than an appropriate comparator (that is, a person who does not have such a disfigurement but who does have the same abilities to do the job): such a person would not have been rejected in the same way.
In the example about the disabled woman who is not offered a job because she uses a wheelchair, there is direct discrimination because the woman was treated less favourably on the ground of her disability than an appropriate comparator (that is, a person who does not use a wheelchair but who does have the same abilities to do the job): such a person would not have been rejected in the same way.
4.17 The comparator used in relation to direct discrimination under the Act is the same as it is for other types of direct discrimination - such as direct sex discrimination. It is, however, made explicit in the Act that the comparator must have the same relevant abilities as the disabled person.
4.18 It may not be possible to identify an actual comparator whose relevant circumstances are the same as (or not materially different from) those of the disabled person in
be used. Evidence which helps to establish how a
hypothetical comparator would have been treated is likely to include details of how other people (not satisfying the statutory comparison test as explained in paragraphs 4.13 and 4.14 above) were treated in circumstances which were broadly similar.
A disabled person works in a restaurant and makes a mistake on the till and this results in a small financial loss to the employer. The disabled person is dismissed because of this. The situation has not arisen before, and so there is no actual comparator. Nevertheless, six months earlier a non-disabled fellow employee was disciplined for taking home items of food without permission and received a written warning. The treatment of that person might be used as evidence that a hypothetical non-disabled member of staff who makes an error on the till would not have been
dismissed for that reason.
4.19 It should be noted that the type of comparator described in the preceding paragraphs is only relevant to disability discrimination when assessing whether there has been
direct discrimination. A different comparison is used
when assessing whether there has been a failure to comply with a duty to make reasonable adjustments (see paragraphs 5.3 and 5.4) or when considering disability- related discrimination (see paragraph 4.30).