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In direct discrimination cases, the choice of comparator to show less favourable treatment is often a key issue. This House of Lords decision sets down some important ground rules, including the principle of using ‘hypothetical’ comparators where actual ones are not possible.

In this case about dress code the Court of Appeal drew a distinction between treating men and women differently, which is not necessarily discriminatory, and discrimination against men or women where one sex being ends up being treated ‘less favourably’ than the other.

In addition to restating that there is no requirement for a comparator in order to evidence ‘unfavourable treatment’ in cases of discrimination relating to pregnancy and maternity (as in Dekker v VJV, 1993) this case also made crystal clear that pregnancy is not an illness, and that a pregnant woman is not the same as a sick man.

This case was a useful illustration of how the particular wording of job advertisements may serve to place individuals of a certain age at a disadvantage and result in employers falling foul of equality laws.