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The Equal Pay Act (NI) 1970 requires a claimant to identify an actual comparator in the same employment. A woman can claim equal pay for equal work with a male colleague or colleagues (known then as a 'comparator'). It is for her to choose the colleague(s), although she does not have to identify them by name at the outset.

The selected comparator could be representative of a group of workers or he could be the only person doing the particular type of work.

The female employee may choose more than one comparator and multiple comparators may be necessary for a term-by-term comparison of her contract. However, an industrial tribunal can strike out a claim with a particular comparator, or could in exceptional cases require a claimant who unreasonably cites too many comparators, to pay some costs.

The chosen comparator does not have to be working at the same time as the woman, so he may for example be a predecessor in the job. However, he cannot be a successor or a hypothetical person.

A comparator in the same employment

For an entitlement to equal pay for equal work to exist, the comparator must be employed by the same employer as the claimant or by an associated employer. The statute states that employees are deemed to be in the same employment if they are employed by the same employer or any associated employer at the same establishment or at establishments in Northern Ireland which include that one and at which common terms and conditions of employment are observed either generally or for employees of the relevant classes. Where the comparator is working at a different establishment, the UK Supreme Court has held that one needs to ask whether, assuming that the comparator was employed to do his present job in the claimant's establishment, would his terms and conditions still be broadly similar to those he currently has in his own establishment.

Furthermore, European law suggests that people will be in the same employment where there is a single, shared source with responsibility for agreeing and setting out the terms and conditions of employment and where that single source is in a position to put right any unlawful discrimination. In practice, this has encompassed employment within the same organisation and within organisations that share common terms and conditions.

What can be compared?

Each individual term in the woman's contract of employment will be compared with those of the comparator(s).