Comparators in equal opportunity law; the tricky aspect of discrimination laws

Comprehending equal opportunity law is much trickier than most people realize. The essence of unlawful discrimination in Australian equal opportunity law, federal or state, is the treatment of a person or persons differently in comparison to others. I often have some difficulty explaining this to clients, many of whom assume that discrimination is actionable if the treatment is unfair or contrary to some stated or unstated standard.
This is not what discrimination and equal opportunity laws are about at all, at least in the employment context, which is the environment in which I am asked about them.
Equal opportunity laws are about (a) prohibiting the treatment of a person or class of persons differently than another person or class of persons (the discriminatory conduct) (b) because of a prohibited reason (the equality of status).
A good simple example is discrimination in the workplace on the ground of age. There are two elements to the contravention namely (a) the discriminatory conduct, for example dismissing an employee and (b) the prohibited reason for the dismissal, say age.
It will be readily apparent, I hope, that equal opportunity laws are about the treatment of persons differently and consequently involve a comparison of that treatment from employee to employee. The law also draws a distinction between direct and indirect discrimination, but that is a conversation for another day.
Whilst some cases of discrimination might be objectively self-evident, most cases are not that simple. An example of the former is the imposition by an employer of a rule to the effect that career advancement is not available to employees of a certain age or sex. An example of the second is the dismissal of an employee for taking industrial action. If there is legislation which prohibits this conduct by an employer, and the employer denies that the reason for the dismissal was that the employee took industrial action, but was motivated by, say, incompetence or persistent lack of punctuality, how does a tribunal get to the bottom of the issue from an equal opportunity perspective.
The answer is that the law requires the tribunal to create a notional “comparator” against whom the conduct of the employer is tested. This is not always as easy as it sounds.
In Stone & Spelta v Brisbane City Council (2015) QCAT 507 delivered 29 December 2015 the Queensland Civil and Administrative Tribunal was called union to determine whether the Brisbane City Council had contravened Queensland’s Equal Opportunity Act when it dismissed 2 drivers who were undertaking industrial action. It did not dismiss a number of other employees who were also taking industrial action.
The Council argued that it had dismissed the applicants because their action was not protected industrial action and that they had previously been warned against taking such action and because of the particular activities on the day. Their claim was to the effect that they had been discriminated against on the basis of their ”trade union activity ” and had been treated less favourably than 38 colleagues who also took action but received only reprimands and warnings.
To determine the merits of the claim, the Tribunal was required to establish a notional “comparator” being a person or group of persons against who to test whether the applicants had been treated less favourably than.
The Tribunal determined that an appropriate comparator would be one who “did not engage in union activity, that is, who was not a union member or delegate and who did not involve himself in industrial issues, but who had undertaken the specific actions of the dismissed employees that day. The comparator needed to be a hypothetical group of employees or a single hypothetical employee who had undertaken
“Mr Stone and Mr Spelta’s case suggests the appropriate comparator must be the 38 other bus drivers who they say participated in the industrial action. Given the description in the evidence of those people as members of the Union, I do not think they can properly be considered a comparator as they bear a hallmark of the attribute “trade union activity”. The Council says the comparator must be a person who engaged in unprotected industrial action but who is not a Union member. I find that the comparison which must be undertaken should be by reference to a person who did not engage in trade union activity, that is, who was not a Union member or delegate and who did not involve himself in industrial issues – but in any event: (a) put passengers off a City Sights bus service in order to stop work without a lawful reason; and/or (b) stopped work without a lawful reason; and/or (c) was not at work when directed to resume work; and (d) had previously been advised stopping work for an unlawful reason was unacceptable. In the circumstances of this case, the comparator is a hypothetical person.”

The reasoning for this was approach was well explained in a WA equal opportunity case in which I was recently involved as counsel namely HARVEY and EVERTOP INVESTMENTS PTY LTD & ANOR [2016] WASAT 10 where the Tribunal said

“Under the heading ‘differential treatment’ at paragraph 4.2.8 of Australian anti•discrimination law, (2nd ed, 2014), the authors N Rees, S Rice and D Allen state:

The first element of the standard description of direct discrimination involves a comparison of the respondent’s treatment of the complainant with the respondent’s treatment of another actual or hypothetical person in similar circumstances who does not have the same protected attribute as the respondent. … In order to determine whether the respondent subjected the complainant to differential treatment • that is, whether the respondent treated the complainant less favourably than he or she treated, or would have treated, another person without the complainant’s relevant attribute (such as race or sex) in comparable circumstances • it is necessary to identify other people whose treatment by the respondent can be compared with the complaint’s treatment by the respondent. These people are usually referred to as ‘comparators’. The ‘comparators’ may be real or hypothetical