PART TWO: CONTENT OF COMPREHENSIVE ANTI-DISCRIMINATION LAW As discussed in section I.A.4 of part two, below, rules, policies or practices that produce differential impacts may be justified in situations in which they are established based on objective and reasonable criteria and are a proportionate means of achieving a legitimate aim.246 COMPARATORS PART TWO – I One means to establish whether direct discrimination has occurred is to show that the complainant has been treated less favourably than another person or group of persons in a relevantly similar situation. Similarly, one means to establish indirect discrimination is to demonstrate that a group of persons sharing a particular characteristic has experienced a disproportionate impact from the application of a rule, when compared with another group. In such cases, the other person or group of persons with whom the applicant is compared is referred to as the “comparator”. The use of a comparators is a common – but by no means necessary – means to establish whether discrimination has occurred. International law recognizes that discrimination can be established without reference to a comparator; it need only be established that a complainant has experienced a detriment connected to a ground of discrimination. In addition, it is not necessary that the comparator be real; there is broad consensus that a comparator may be hypothetical. The use of comparators has been explored in the jurisprudence of the European Court of Human Rights. The Court has held in a number of cases that the question for the adjudicator is whether there is a difference in treatment of “persons in an analogous or relevantly similar situation”,247 indicating that the requirement to demonstrate an analogous position does not require that the comparator groups be identical. It has also held that applicants should be able to demonstrate that, having regard to the particular nature of their complaints, they were in a relevantly similar situation to others treated differently.248 Elements that characterize different situations and determine their comparability must be assessed in light of the subject matter and purpose of the measure that makes the distinction in question.249 In other words, the analysis of the question of whether two persons or groups are in a comparable situation for the purposes of assessing differential treatment and discrimination is both specific and contextual.250 In its jurisprudence on the question, the United Kingdom House of Lords has stated that “unless there are very obvious relevant differences between the two situations, it is better to concentrate on the reasons for the difference in treatment and whether they amount to an objective and reasonable justification”.251 Comparators are only one means to establish that direct or indirect discrimination has occurred. The Committee on Economic, Social and Cultural Rights and the Committee on the Rights of Persons with Disabilities have both noted that discrimination can include “detrimental acts or omissions on the basis of prohibited grounds where there is no comparable similar situation”.252 This principle is fundamentally important, as establishing a comparator – actual or hypothetical – can be difficult for 246 See in particular section I.A.4(b) of part two of the present guide. 247 European Court of Human Rights, Molla Sali v. Greece, Application No. 20452/14, Judgment, 19 December 2018, para. 133; Fábián v. Hungary, Application No. 78117/13, Judgment, 5 September 2017, para. 113; Khamtokhu and Aksenchik v. Russia, Application Nos. 60367/08 and 961/11, Judgment, 24 January 2017, para. 64; X and others v. Austria, Application No. 19010/07, Judgment, 19 February 2013, para. 98; Konstantin Markin v. Russia, Application No. 30078/06, Judgment, 22 March 2012, para. 125; Burden v. the United Kingdom, Application No. 13378/08, Judgment, 29 April 2008, para. 60; D.H. and others v. the Czech Republic, Application No. 57325/00, Judgment, 13 November 2007, para. 175; Zarb Adami v. Malta, Application No. 17209/02, Judgment, 20 June 2006, para. 71; and Kafkaris v. Cyprus, Application No. 21906/04, 12 February 2008, para. 160. 248 European Court of Human Rights, Fábián v. Hungary, Application No. 78117/13, Judgment, 5 September 2017, para. 113; and Clift v. the United Kingdom, Application No. 7205/07, 13 July 2010, para. 66. 249 European Court of Human Rights, Fábián v. Hungary, Application No. 78117/13, Judgment, 5 September 2017, para. 121. 250 For further reading on the approach of the European Court of Human Rights to the use of comparators, see European Court of Human Rights, Guide on Article 14 of the European Convention on Human Rights and on Article 1 of Protocol No. 12 to the Convention: Prohibition of Discrimination (Strasbourg, 2021), paras. 52–61. For an overview of the approach of the Court of Justice of the European Union to comparators, including exceptions to the rule, see European Union Agency for Fundamental Rights and Council of Europe, Handbook on European Non-Discrimination Law (Luxembourg, Publications Office of the European Union, 2018), pp. 44–49. 251 Al (Serbia) v. Secretary of State for the Home Department [2008] UKHL 42, remarks made by Baroness Hale of Richmond. 252 Committee on Economic, Social and Cultural Rights, general comment No. 20 (2009), para. 10 (a); and Committee on the Rights of Persons with Disabilities, general comment No. 6 (2018), para. 18 (a). 35