1. Introduction

The comparator is central to most direct discrimination complaints under the Employment Equality Acts 1998 to 2015. A complainant must generally show that they were treated less favourably than a person of a different gender, age, race, religion or other relevant ground, in circumstances that are not materially different.

This article considers the role of the actual and hypothetical comparator, the principles applied in selecting an appropriate comparator, and the special rules that apply in pregnancy and equal pay complaints.

2. Legislation and Case Law

Section 6(1) of the Acts defines discrimination as occurring where one person is treated less favourably than another is, has been or would be treated in a comparable situation. The phrase “would be treated” expressly contemplates a hypothetical comparator.

In equal pay complaints under Section 19 (gender) and Section 29 (other grounds), the comparator must be an actual person performing “like work” within the meaning of Section 7. A hypothetical comparator is not permitted in equal pay cases.

In pregnancy discrimination cases, the Court of Justice in Dekker v VJV-Centrum C-177/88 held that no comparator is required, because pregnancy is a uniquely female condition and any adverse treatment by reason of pregnancy is necessarily direct discrimination on grounds of gender.

The Labour Court in A Government Department v An Employee EDA0915 confirmed that the comparator must be in a situation that is not materially different from that of the complainant. Differences in role, seniority, performance or contractual terms may render the comparison invalid. 

3. Decision

The WRC will examine whether the comparator selected by the complainant is genuinely comparable. Where the complainant relies on a hypothetical comparator, the analysis focuses on how a person of the relevant protected characteristic would have been treated in the same circumstances.

In equal pay complaints, the WRC will conduct a detailed job evaluation to determine whether the work is “like work” within Section 7, which encompasses identical work, work of similar nature and work of equal value.

Where the comparison is established, the burden shifts under Section 85A to the respondent to provide a non-discriminatory explanation for the differential treatment.

4. Takeaway

Complainants should identify their proposed comparator at the earliest stage and be prepared to address any material differences between their circumstances and those of the comparator.

Employers should maintain consistent terms, policies and decision-making criteria across the workforce. Where genuine differences exist, the reasons should be documented contemporaneously.

5. Further information

This article was prepared for informational purposes only. For further advice, please email enquiries@crushell.ie or contact the offices of Crushell & Co Solicitors.

6. About Crushell & Co

Crushell & Co is a specialist law firm focused on protecting and advancing the rights of employees in Ireland. We offer a nationwide service, advising individuals on a wide range of legal and regulatory issues arising at work, including employment law, employment immigration and workplace accidents and injuries.

We help employees understand their position and options by translating complex legal issues into clear, practical advice. Our approach is tailored to each client, ensuring that our strategy is aligned with their personal and professional circumstances.

Connect: @CrushellLaw or www.crushell.ie