4.10 An appropriate comparator is one whose relevant circumstances, including his abilities, are the same as, or not materially different from, those of the disabled person. There is no need to find a comparator whose circumstances are the exactly same as those of the disabled person in every respect. The comparator’s relevant circumstances (including his abilities) must be the same as, or not materially different from, those of the disabled person.
In the previous example, the relevant
circumstances are the course and period of absence. Both student B and student C have the same relevant circumstances as student A and therefore either is an appropriate comparator.
4.11 In order to identify an appropriate comparator it is necessary to first identify the relevant
circumstances in respect of the less favourable
treatment complained of. It is important therefore to focus on those circumstances which are, in fact, relevant to the matter to which the less favourable treatment relates.
A disabled person who has an impairment that affects her dexterity is not entered for an exam because her handwriting speed is slower than that of her peers. The relevant circumstance in this instance is the writing speed. Therefore, the correct comparator would be a person not
having the dexterity-related impairment who writes at the same speed.
A wheelchair user with one GCSE is not accepted on a business studies A level because the entry requirements onto the course require applicants to have two GCSEs. The correct comparator is a person who is not a wheelchair user who also has one GCSE.
A disabled person with schizophrenia applies for a place on a course at his local college and
declares his history of mental illness. The college refuses him a place. The decision is based on assumptions about the effects of schizophrenia, without adequate consideration of the
individual’s abilities and the impact of the impairment in his particular case. The
comparator here is a person who does not have schizophrenia, but who has the same abilities to do the course (including relevant qualifications and experience) as the disabled applicant. Such a person would not have been rejected without adequate consideration of his individual abilities.
4.12 In some cases, the effects of the disability may be relevant; however, the fact of the disability itself is not a relevant circumstance for these purposes. This is because the comparison must be with a person not having that particular disability.
An education provider does not accept a woman with cerebral palsy onto a course in car
maintenance because the course requires a level of manual dexterity which she does not have. The correct comparator is someone who does not have cerebral palsy but has a similar level of
4.13 If a disabled person alleges that he has been refused a place on a course on the grounds of his disability, it is only appropriate to compare those of his circumstances which are relevant to his ability to do the course. It is not appropriate to compare other circumstances which are not relevant to this issue. The need to focus on relevant circumstances applies not only to admissions cases of this kind, but also to any other situation where direct discrimination may have occurred.
In the above example, the speech of the
applicant is also affected by her cerebral palsy. The course does not require clarity of speech. The comparator in a claim for direct
discrimination would be an applicant with a similar level of manual dexterity but it would not be necessary for the comparator to have a
speech impairment (because the way in which the applicant speaks is not relevant to the applicant’s ability to do the course).
4.14 Once an appropriate comparator is identified, the situations described in the examples at paragraph 4.5 and 4.11 could amount to direct
discrimination.
In the example about the blind woman who is not offered a place on the IT course, there is direct discrimination because the woman was treated less favourably on the grounds of her disability than an appropriate comparator (that is, a person who is not blind but who has the same abilities to do the course as the blind applicant). Such a person would not have been rejected out of hand without consideration of her individual abilities.
In the example about the disabled person with a severe facial disfigurement who applies to be a student representative, there is direct
discrimination because the student was treated less favourably on the grounds of his 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 place on a history course because she uses a wheelchair, there is direct
discrimination because the woman was treated less favourably on the grounds 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 course). Such a person would not have been rejected in the same way.
In the example about the disabled person who is not entered for an exam because her
handwriting is slower than that of her peers, this would be direct discrimination if another person who does not have the same impairment but with a similar writing speed was or would have been entered for the exam.
In the example about the wheelchair user not accepted on a business studies A level. This would be direct discrimination if another
applicant, who was not a wheelchair user, with
In the example about the disabled person with schizophrenia refused a place on a course, there is direct discrimination because the disabled person was treated less favourably on the grounds of his disability than an appropriate comparator (that is, a person with the same abilities).
4.15 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 question. In such cases a hypothetical comparator may be used. Evidence which helps to establish how a hypothetical comparator would have been treated is likely to include details of how other people were treated in circumstances which were broadly similar.
In the example at 4.9, student A is removed from his course due to his absence from the course for one term because of his mental health condition. If, in a similar situation, there was no actual
comparator, such as students B and C, but a student on the course was told that she could have time off for pregnancy leave, then the treatment of this student might be used as evidence that a hypothetical non-disabled
student who misses a term would not have been removed from the course.
4.16 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 made when assessing whether there has been a failure to comply with a duty to make reasonable
adjustments (see Chapter 5) or when considering disability-related discrimination (see Chapter 6).