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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
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Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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how do i describe the comparator to a tribunal in disability

Resolved Question:

how do i describe the comparator to a tribunal in disability discrimination cases?
Submitted: 3 years ago.
Category: Employment Law
Expert:  Ben Jones replied 3 years ago.
Ben Jones : Hello, my name is ***** ***** it is my pleasure to assist you with your question today. Do you have an actual comparator or a hypothetical one?
Customer:

Hi. I could find an actual but i may need a hypothetical. What i need is when the judge says to me who is your comparator. How do i describe it to the judge?

Customer:

I was asked to rate answer but have not received one. I did provide additional info and further info here too. This will be constructive dismissal, i am on sick at the present and my notice in the contract is 8 weeks. Can i give 8 weeks notice?

Ben Jones :

When claiming discrimination you must be able to show that you have been treated less favourably than a real or hypothetical comparator whose circumstances are not materially different to yours.

When describing the comparator you must concentrate on the relevant "circumstances" that you and the comparator share and which the employer took into account in deciding to treat you as it did.

So you will effectively be using a comparator who has the same general circumstances and abilities as you, but who was not disabled. You would need to show that the reasons you were treated detrimentally were because of your disability and you must show that by using a comparator. So you need to make it clear that someone in a similar position as you but who was not disabled was treated better than you because of the fact that they were not disabled. You would then describe the comparator as someone who does have the same, or similar circumstances as you, but who would not have been treated in the same way as you due to the fact they did not have a disability.

Finally, if you are considering resigning and claiming constructive dismissal you would be expected to resign with immediate effect rather than serve your notice period. If you decide to give your notice period and work it then that could affect your claim as it will show that things were not as bad as you may claim, because you were willing to remain an employee for a further 8 weeks.

Hope this clarifies your position? If you could please let me know that would be great, thank you

Customer:

HI Ben. Thanks. when you say relevant "circumstances" i and the comparator share, ca n you briefly clarify? Also whose circumstances are not materially different to mine how do you mean?

Ben Jones :

well the circumstances would be for example, someone doing the same job, with similar length of service, similar abilities to you, etc. You need to pick a comparator who has the same or similar circumstances to yours, but who is not disabled so it would be that person whose circumstances cannot be materially different to yours

Customer:

great. thanks Ben.

Ben Jones :

you are most welcome

Customer:

can i rate now?

Ben Jones :

yes certainly although it may not always work so you can just type in your choice instead if that is the case

Customer:

Excellent.

Ben Jones :

thank you

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