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Discrimination – Identifying the Right Comparator Can be Problematic

The usual way of detecting discrimination is to conduct a comparison between the treatment of complainants and colleagues in a similar position. However, as one Employment Appeal Tribunal (EAT) decision illustrated, identifying an appropriate comparator is frequently problematic.

The case concerned a doctor who claimed that her employer’s two-thirds final salary pension scheme unlawfully discriminated against those who had worked both full time and part time during their careers. She had retired after working for 27 years for the same employer and was awarded about 78 per cent of a full pension. That was on the basis that, when periods of part-time work were taken into account, she had completed the equivalent of 21 years' full-time service.

In complaining to an Employment Tribunal (ET), she argued that a full-time worker who had worked for 20 years or more would have qualified for a full pension. It was submitted that the scheme was infected by double pro-rating in the case of those with some part-time service and that she had been put at a particular disadvantage.

Her claim was, however, dismissed on the basis that making use of her suggested full-time comparator would have failed to take account of a critical feature of the scheme – that benefit accrual rates under it depended on the employee's age on joining the employer and the years remaining until normal pension age.

In rejecting her challenge to that decision, the EAT could detect no error of law in the ET’s decision on the comparator issue. It was unfortunate that the ET had cut and pasted the majority of its decision, on an almost word-for-word basis, from the employer’s written arguments. However, its reasoning was sufficient to enable her to understand its conclusion that she was not being paid less by way of pension entitlement than a comparable full-time worker.



 
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