With regard to direct discrimination, the government has decided to retain the requirement for a comparator, judging that this reflects that discrimination is principally about “equal”, rather than “fair”, treatment.

At present, explicit protection in relation to discrimination on the basis of perception and association exists in the race, religion and sexual orientation discrimination legislation, while discrimination on grounds of perceived age is also covered. The government’s initial intentions were to extend protection to those discriminated against on the grounds of association with transsexuals, but otherwise to continue with the existing situation. It has, however, stated that it is now considering the implications of the judgment in Coleman v Attridge Law, in which the ECJ held that the EC Framework Employment Directive covers discrimination against an employee on the grounds of his or her association with a disabled person.

In general, indirect discrimination is defined as occurring where an apparently neutral provision, criterion or practice puts people of the claimant’s group at a particular disadvantage. However, in relation to race discrimination on grounds of colour or nationality, the test is different and arguably harder to satisfy. The government’s decision is that the definition should be harmonised by adopting the provision, criterion or practice test.

At present, victimisation in discrimination law is generally defined as less favourable treatment of someone because he or she has carried out a protected act (such as bringing tribunal proceedings). The claimant needs to show a comparator, ie that he or she has been treated less favourably than someone else in similar circumstances. This is in contrast to the concept of victimisation in the Employment Rights Act 1996, where it is framed in terms of an individual suffering a detriment for exercising various employment rights, and no comparator is required. The goverment says that it plans to align the approach to victimisation in discrimination cases with that in “employment law” cases, by removing the need for a comparator.

While hypothetical comparators are permitted by the sex, race, disability, religion or belief, sexual orientation and age discrimination legislation, equal pay claims based on how a woman’s employer “would treat” a man are not permissible. While there was strong support among respondents for allowing hypothetical comparators in equal pay claims, the government has decided against this option. It is concerned about the perverse situations that could result - citing the extreme example of a male gardener claiming the same pay as a male caretaker on the basis of a hypothetical female caretaker’s earnings.

Still on the subject of equal pay, while the equal pay provisions are to be brought within the Equality Bill, the government has decided to retain the distinction between contractual pay matters (currently dealt with by the Equal Pay Act 1970) and non-contractual pay matters, such as non-contractual bonuses (currently dealt with by the Sex Discrimination Act 1975).