Naming a Comparator in Equality Cases*
This issue arose in ADJ-00019998 where the Adjudication Officer addressed this issue. The Adjudication Officer referred to the case of Darguiz -v- Lough Corrib Engineering limited DEC-E2009-038 where the Equality Tribunal stated;
“I have no hesitation in using a hypothetical comparator in appropriate situations such as where it is shown that the existing potential comparators are unsuitable for one reason or another. However, in the instant case there were four non-Lithuanian employees working for the respondent on the same site at any one time and no reason has been adduced by the complainant as to why they were not suitable as comparators”.
The Adjudication Officer pointed out that the Complaint must establish a difference in treatment relative to a named comparator in relation to the adverse consequences of availing of medical treatment or using the mobile phone while driving a vehicle with loaded goods or loaded cargo in an incorrect manor or been prohibited from using a particular machine or vehicle to move goods. The Complaint confirmed that there were usually two non-Irish workers on the daily team of twenty cargo agents. The argument that he was afraid to name them for fear they would suffer retaliation in circumstances where they would not have to appear at the hearing is questionable. The Adjudication Officer pointed out that while the Complainant did assert that two named individuals exited unscathed from lapses in standards operating procedures he could not confirm in cross examination that the lapses were actually observed or that the cargo agents were not taken to task subsequently.
The Adjudication Officer held that the Adjudication Officer could not find that the incidents complained of within the statutory limit constituted a prima facie case of discrimination.
The issue of having comparators is extremely important. While hypothetical comparators can be used it is always the situation that if there are comparators that can be named then in those circumstances they must be.
*Before acting or refraining from acting on anything in this guide, legal advice should be sought from a solicitor.
*In contentious cases a solicitor may not charge fees or expenses as a proportion or percentage of any award or settlement.