(i) Generally
To be treated less favourably necessarily implies some element of comparison: the complainant must have been treated differently to a comparator or comparators, be they actual or hypothetical. The issues arising in respect of comparators are considered below at paras [246]–[269]. More than that, however, the complainant must have been treated less favourably than that comparator; but what level of difference of treatment amounts to less favourable treatment?
An early decision of the Court of Appeal suggests that trivial differences in treatment may be disregarded on the principle that de minimis non curat lex (Peake v Automotive Products Ltd [1978] QB 233, [1977] IRLR 365, [1977] ICR 968, CA, as explained in Ministry of Defence v Jeremiah [1979] IRLR 436, [1980] ICR 13, CA). The Peake case related to a man's complaint that he suffered direct discrimination because female employees were allowed to leave work
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