Equality Act 2010, section 23

Comparison by reference to circumstances

Part 2 Equality: key concepts

(1)On a comparison of cases for the purposes of section 13, 14, [F3519 or 19AF35] there must be no material difference between the circumstances relating to each case.

(2)The circumstances relating to a case include a person's abilities if—

(a)on a comparison for the purposes of section 13, the protected characteristic is disability;

(b)on a comparison for the purposes of section 14, one of the protected characteristics in the combination is disability.

(3)F36If the protected characteristic is sexual orientation, the fact that one person (whether or not the person referred to as B) is a civil partner while another is married ... is not a material difference between the circumstances relating to each case.

[F37 (4)If the protected characteristic is sexual orientation, the fact that one person (whether or not the person referred to as B) is married to[F38 , or the civil partner of,F38] a person of the same sex while another is married to[F38 , or the civil partner of,F38] a person of the opposite sex is not a material difference between the circumstances relating to each case.F37]

Cases considering section 23 107

R v Secretary of State for Justice

[2017] UKSC 40 · 24 May 2017Interprets

The relevant circumstances of the comparators were their release on licence subject to residence in approved premises. Differences in general characteristics or risk profiles were immaterial to the opportunity for placement near home (see para [32]).

Leicester City Council v Bindu Parmar

[2025] EWCA Civ 952 · 22 July 2025Interprets

The court used section 23 to state the no-material-difference requirement governing comparison with a statutory comparator. The requirement did not prevent other employees being used as evidential comparators. (see para [85]) The court applied the requirement that there be no material difference between the circumstances relating to the claimant’s case and a statutory comparator’s case. It distinguished that statutory requirement from the separate evidential use of other employees. (see paras [56]-[61], [85], [87])

Roopesh Davda v The Institute and Faculty of Actuaries

[2024] EWCA Civ 1460 · 2 December 2024Limits

The court held that the comparator must have no material difference in circumstances and rejected an unrestricted choice of comparator. (see para [79])

87 more judgments, and what each says about section 23, are in the case-law panel in the full Act.

Explanatory note

91.This section provides that like must be compared with like in cases of direct, dual or indirect discrimination. The treatment of the claimant must be compared with that of an actual or a hypothetical person – the comparator – who does not share the same protected characteristic as the claimant (or, in the case of dual discrimination, either of the protected characteristics in the combination) but who is (or is assumed to be) in not materially different circumstances from the claimant. In cases of direct or dual discrimination, those circumstances can include their respective abilities where the claimant is a disabled person.

92.The section also enables a civil partner who is treated less favourably than a married person in similar circumstances to bring a claim for sexual orientation discrimination.

93.The section replicates similar provisions in previous legislation but also accommodates the new concept of dual discrimination.

All the explanatory notes for the Act

Amendments and notes

4 notes from legislation.gov.uk

Amendments

  1. F35Words in s. 23(1) substituted (1.1.2024) by The Equality Act 2010 (Amendment) Regulations 2023 (S.I. 2023/1425), regs. 1(2), 3(3)
  2. F36Words in s. 23(3) omitted (2.12.2019) by virtue of The Civil Partnership (Opposite-sex Couples) Regulations 2019 (S.I. 2019/1458), reg. 1(2), Sch. 3 para. 32(2)(a)
  3. F37S. 23(4) inserted (13.3.2014) by Marriage (Same Sex Couples) Act 2013 (c. 30), s. 21(3), Sch. 7 para. 43(3); S.I. 2014/93, art. 3(k)(iv)
  4. F38Words in s. 23(4) inserted (2.12.2019) by The Civil Partnership (Opposite-sex Couples) Regulations 2019 (S.I. 2019/1458), reg. 1(2), Sch. 3 para. 32(2)(b)