House of Lords
|Session 2002 - 03
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Shamoon (Appellant) v Chief Constable of the Royal Ulster Constabulary (Respondent) (Northern Ireland)
OF THE LORDS OF APPEAL
FOR JUDGMENT IN THE CAUSE
Chief Constable of the Royal Ulster Constabulary (Respondent) (Northern Ireland)
THURSDAY 27 FEBRUARY 2003
The Appellate Committee comprised:
Lord Nicholls of Birkenhead
Lord Hope of Craighead
Lord Scott of Foscote
Lord Rodger of Earlsferry
HOUSE OF LORDS
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSEShamoon (Appellant) v. Chief Constable of the Royal Ulster Constabulary (Respondent) (Northern Ireland)  UKHL 11
LORD NICHOLLS OF BIRKENHEAD
1. This is a sex discrimination case. The appeal raises an issue concerning identification of the appropriate comparator. It is not the first time this type of issue has come before the courts in discrimination cases. So it may be helpful to go back to first principles.
2. In this country discrimination law is statute-based. Statute law prohibits discrimination on specified grounds, such as sex, in specified circumstances, such as the field of employment. Initially the proscribed grounds were sex, marital status and race. Disability and gender reassignment have since been added to the list. Additionally, in Northern Ireland the proscribed grounds include religious belief and political opinion. Each statutory provision specifies with some particularity the circumstances in which discrimination, on the relevant proscribed ground, is unlawful. For instance, under section 6(2) of the Sex Discrimination Act 1975 it is unlawful for an employer to discriminate against an employee by dismissing her or him.
3. The definition of discrimination differs in some respects from statute to statute. But the essence of what is known colloquially as direct discrimination is the same in all the statutes. It consists of treating one person less favourably than another on the proscribed ground. Thus, to take the provisions of the Sex Discrimination Act 1975 as illustrative, section 1(1) of that Act provides:
(a) on the ground of her sex he treats her less favourably than he treats or would treat a man "
The 'circumstances relevant for the purposes of any provision of this Act' are the circumstances in which discrimination is prohibited by the Act: see R v Immigration Appeal Tribunal, Ex parte Kassam  1 WLR 1037, 1041, per Stephenson LJ, and Chief Constable of the West Yorkshire Police v Khan  1 WLR 1947, 1953.
4. Thus, where the act complained of consists of dismissal from employment, the statutory definition calls for a comparison between the way the employer treated the claimant woman (dismissal) and the way he treated or would have treated a man. It stands to reason that in making this comparison, with a view to deciding whether a woman who was dismissed received less favourable treatment than a man, it is necessary to compare like with like. The situations being compared must be such that, gender apart, the situation of the man and the woman are in all material respects the same. This self-evident proposition is spelled out in section 5(3) of the Sex Discrimination Act: see Dillon LJ in Bain v Bowles  IRLR 356, 357. As originally enacted (the later amendments are not relevant for present purposes), section 5(3) provides:
This provision applies regardless of whether the comparator is an actual person or a hypothetical person. It is equally applicable to both types of comparator.
5. Each of the statutory provisions also includes victimisation within the definition of discrimination. This is an essential ancillary safeguard. Persons who exercise their statutory rights are not to be penalised for doing so. Employers and others who retaliate in this way are guilty of discrimination. The victimisation provisions adopt substantially the same structure as the direct discrimination provisions, save only that the proscribed ground is different. In cases of direct discrimination, the proscribed ground is sex, or whatever. In cases of victimisation the proscribed ground is that the claimant committed one of the 'protected acts'; for instance, that the claimant had brought proceedings under the Act. Subject to this necessary adjustment, the definition of victimisation calls for a similar 'less favourable treatment' comparison. In the case of direct sex discrimination the comparison is between the treatment afforded to the claimant woman and that afforded to a man. In the case of victimisation the comparison is between the treatment afforded to the claimant and the treatment afforded to a person who has not committed a protected act. Section 4 of the Sex Discrimination Act provides:
6. In the Sex Discrimination Act there is one linguistic difference between section 1(1), defining direct discrimination, and section 4, defining discrimination by way of victimisation. Section 5(3), containing the 'like with like' direction, is expressed to apply to sections 1(1) (sex discrimination) and 3(1) (marital status discrimination). Section 5(3) makes no mention of section 4(1) (victimisation). I do not think this omission is significant. I can see no reason in principle why the two comparison exercises should differ in their nature. Rather, although the language may be maladroit, the phrase 'in those circumstances' in section 4(1) seems to be intended to serve the same purpose in relation to victimisation as section 5(3) serves in relation to direct discrimination under section 1(1). Indeed, this is made explicit in the updated language of the Disability Discrimination Act 1995. In the definition of victimisation in that Act, section 55(1) calls for a comparison between the treatment afforded to the claimant and the treatment afforded to 'other persons whose circumstances are the same' as those of the claimant.
7. With this introduction I turn to consider the application of these provisions in practice. In deciding a discrimination claim one of the matters employment tribunals have to consider is whether the statutory definition of discrimination has been satisfied. When the claim is based on direct discrimination or victimisation, in practice tribunals in their decisions normally consider, first, whether the claimant received less favourable treatment than the appropriate comparator (the 'less favourable treatment' issue) and then, secondly, whether the less favourable treatment was on the relevant proscribed ground (the 'reason why' issue). Tribunals proceed to consider the reason why issue only if the less favourable treatment issue is resolved in favour of the claimant. Thus the less favourable treatment issue is treated as a threshold which the claimant must cross before the tribunal is called upon to decide why the claimant was afforded the treatment of which she is complaining.
8. No doubt there are cases where it is convenient and helpful to adopt this two step approach to what is essentially a single question: did the claimant, on the proscribed ground, receive less favourable treatment than others? But, especially where the identity of the relevant comparator is a matter of dispute, this sequential analysis may give rise to needless problems. Sometimes the less favourable treatment issue cannot be resolved without, at the same time, deciding the reason why issue. The two issues are intertwined.
9. The present case is a good example. The relevant provisions in the Sex Discrimination (Northern Ireland) Order 1976 are in all material respects the same as those in the Sex Discrimination Act 1975 which, for ease of discussion, I have so far referred to. Chief Inspector Shamoon claimed she was treated less favourably than two male chief inspectors. Unlike her, they retained their counselling responsibilities. Is this comparing like with like? Prima facie it is not. She had been the subject of complaints and of representations by Police Federation representatives, the male chief inspectors had not. This might be the reason why she was treated as she was. This might explain why she was relieved of her responsibilities and they were not. But whether this factual difference between their positions was in truth a material difference is an issue which cannot be resolved without determining why she was treated as she was. It might be that the reason why she was relieved of her counselling responsibilities had nothing to do with the complaints and representations. If that were so, then a comparison between her and the two male chief inspectors may well be comparing like with like, because in that event the difference between her and her two male colleagues would be an immaterial difference.
10. I must take this a step further. As I have said, prima facie the comparison with the two male chief inspectors is not apt. So be it. Let it be assumed that, this being so, the most sensible course in practice is to proceed on the footing that the appropriate comparator is a hypothetical comparator: a male chief inspector regarding whose conduct similar complaints and representations had been made. On this footing the less favourable treatment issue is this: was Chief Inspector Shamoon treated less favourably than such a male chief inspector would have been treated? But, here also, the question is incapable of being answered without deciding why Chief Inspector Shamoon was treated as she was. It is impossible to decide whether Chief Inspector Shamoon was treated less favourably than a hypothetical male chief inspector without identifying the ground on which she was treated as she was. Was it grounds of sex? If yes, then she was treated less favourably than a male chief inspector in her position would have been treated. If not, not. Thus, on this footing also, the less favourable treatment issue is incapable of being decided without deciding the reason why issue. And the decision on the reason why issue will also provide the answer to the less favourable treatment issue.
11. This analysis seems to me to point to the conclusion that employment tribunals may sometimes be able to avoid arid and confusing disputes about the identification of the appropriate comparator by concentrating primarily on why the claimant was treated as she was. Was it on the proscribed ground which is the foundation of the application? That will call for an examination of all the facts of the case. Or was it for some other reason? If the latter, the application fails. If the former, there will be usually be no difficulty in deciding whether the treatment, afforded to the claimant on the proscribed ground, was less favourable than was or would have been afforded to others.
12. The most convenient and appropriate way to tackle the issues arising on any discrimination application must always depend upon the nature of the issues and all the circumstances of the case. There will be cases where it is convenient to decide the less favourable treatment issue first. But, for the reason set out above, when formulating their decisions employment tribunals may find it helpful to consider whether they should postpone determining the less favourable treatment issue until after they have decided why the treatment was afforded to the claimant. Adopting this course would have simplified the issues, and assisted in their resolution, in the present case.
13. The views expressed above accord with the decision of your Lordships' House in the victimisation case of Chief Constable of the West Yorkshire Police v Khan  1 WLR 1947. The observations made by myself and others in that case regarding comparators have to be read in the context of the particular issue then before the House. The claimant, Sergeant Khan, was looking for new employment with another employer. He had unsuccessfully sought a reference from his existing employer, the Chief Constable of West Yorkshire. He claimed that his request had been refused because he had started proceedings in an industrial tribunal alleging racial discrimination. The Chief Constable submitted that in deciding the less favourable treatment issue Mr Khan's treatment was to be compared with the treatment which would have been afforded to a hypothetical police officer having two characteristics: first, that he had not committed a protected act and, secondly, that he had brought proceedings against the Chief Constable on some other ground, such as libel or wrongful dismissal. The House rejected the second half of this submission. The statute calls for a simple comparison between the treatment given to Mr Khan and the treatment which would have been given to a police officer who had not done a protected act. Protected act aside, the hypothetical comparator should be in the same position as Mr Khan, not in an admittedly different but allegedly comparable position.
The present case
14. The majority of the industrial tribunal expressed themselves as satisfied that Chief Inspector Shamoon 'had been treated differently because she was a woman'. With all respect to the tribunal, I have to say that the reasoning underlying this conclusion is far from clear. Superintendent Laird acted in response to representations made by the Police Federation. The Federation representatives did not make similar representations in respect of male chief inspectors in other traffic regions. The tribunal considered it was not required to decide whether the Federation representatives 'had been guilty of discrimination' against Chief Inspector Shamoon. But if the Federation representatives were not discriminating against Chief Inspector Shamoon on the ground of her sex, it is far from clear why Superintendent Laird, in response to the Federation representatives, should nevertheless have acted on the grounds of sex. This is possible, but some further explanation was called for in this case, not least because the tribunal's prior consideration of the less favourable treatment issue is opaque.
15. Insufficiency of reasons ordinarily leads to the case being remitted for a re-hearing, although neither party made such a request in this case. Such a direction is not appropriate if there was no evidence on which a properly directed tribunal could have upheld the claimant's application. Whether there was such evidence in this case is an issue on which I have entertained more doubt than your Lordships. In reaching its overall conclusion the tribunal set out some criticisms of Superintendent Laird's evidence. There was no urgent need to change the practice, and the Force regulations were being altered in less than three months' time. I am inclined to think that a well reasoned decision could not have been upset as perverse. However, since all your Lordships consider otherwise I would not dissent on this point. In agreement, therefore, with all your Lordships I too would dismiss this appeal.
LORD HOPE OF CRAIGHEAD
16. This is an appeal from a decision of the Court of Appeal in Northern Ireland (Carswell LCJ and Nicholson and McCollum LJJ) which was delivered on 18 May 2001 allowing an appeal by way of case stated against the decision of an industrial tribunal that the appellant, Chief Inspector Joan Cartwright Shamoon, had been discriminated against on the grounds of her sex.
17. The appellant had lodged a complaint with an industrial tribunal for Northern Ireland on 9 December 1997 alleging that she had been discriminated against on the ground of her sex contrary to article 3 of the Sex Discrimination (Northern Ireland) Order 1976 by her employer, the Chief Constable of the Royal Ulster Constabulary. In April 1998 she lodged three further applications in which she alleged that she had been subjected to unlawful discrimination and victimisation in the course of her employment. After a hearing which lasted for twenty four days and took place on various dates between 18 October 1999 and 30 March 2000, the tribunal dismissed the three complaints which were lodged in April 1998. But the first complaint was upheld. A majority of the tribunal were of the opinion that there was sufficient material in the evidence from which it could reach the opinion that she had been discriminated against on the grounds of her sex.
18. The respondent expressed dissatisfaction with the decision of the tribunal and requested it to state a case for the opinion of the Court of Appeal on the following questions of law:
19. The appellant had been a member of the Royal Ulster Constabulary ("the RUC") for twenty two years prior to the events which gave rise to the complaint. Since September 1995 she had held the rank of chief inspector. She was employed in the Traffic Branch of the RUC. The branch was divided into three divisions - North, South and Urban Traffic. The appellant was deputy head of Urban Traffic. Her superior officer was the Superintendent who was in charge of that division. The appellant had worked as deputy to three superintendents before Superintendent Laird became the head of Urban Traffic in February 1997.
20. The RUC operated a Staff Appraisal Scheme. Clause 3.3 of the scheme provided that all ranks from constables who had completed a year out of probation to superintendents who had been confirmed in rank or appointment were to be appraised. There were two separate stages in this exercise. The first was the preparation of an annual report compiled by the officer's supervisor who was the assessing officer. The second was an interview by a designated senior officer who was the counselling officer. Clause 3.2 of the scheme provided that that the reports would normally be completed by a superintendent as the counselling officer. But by 1997 it had become the established custom and practice, and was endemic within the Force generally, that chief inspectors did the counselling of constables. As the appellant held the rank of chief inspector, it was the practice for her to carry out counselling in respect of all the staff appraisals of constables in Urban Traffic.
21. In April 1997 Constable Lowens made a complaint to Superintendent Laird about the manner in which the appellant had conducted the appraisal in his case. His complaint was upheld by Superintendent Laird. In September 1997 Constable Currie expressed dissatisfaction about comments which the appellant made in her appraisal about him. After discussion with Superintendent Laird the appellant agreed to delete some words from her report to which Constable Currie had taken exception. But the Constable took his complaint to the Police Federation. The Federation's representatives then asked for a meeting with Superintendent Laird. On 6 October 1997 a long meeting took place between Superintendent Laird and three representatives of the Federation, who were one each from the three ranks of constable, sergeant and inspector. During this meeting the procedures concerning staff appraisals were discussed. Superintendent Laird's evidence to the tribunal was that Constable Currie's appraisal was not discussed at this meeting, although he admitted that there were allusions to recent problems. He denied that the discussion referred directly to the appellant. But the tribunal found that it was probable that her handling of Constable Currie's appraisal was specifically discussed, as this was the background against which the meeting had been sought.
22. In the course of this meeting Superintendent Laird assured the representatives of the Federation that he would not act contrary to policy or procedures in the conduct of the appraisals. The Federation's representatives then brought the terms of the Staff Appraisal Scheme to his attention, whereupon he accepted that he should follow the letter of the scheme. He promised that henceforth he would do the appraisals, although he said that they would be carried out by the appellant in his absence. It was however already common knowledge that the policy relating to appraisals was to change in December 1997, with the result that from and after that date they were to be undertaken by chief inspectors. On 10 October 1997 the appellant was approached by a civil servant regarding completing staff appraisals. She spoke to Superintendent Laird and suggested that as he was off on the Monday and Tuesday she could do them. But he said that he had given an undertaking to the Federation and arranged to have the appraisals done when he came back.
23. When Superintendent Laird informed the appellant of the outcome of his meeting with the Federation she immediately expressed her dissatisfaction and annoyance over what she regarded as his failure to stand up to the Federation and resist their demands. She told him that she wished to invoke the grievance procedure, as her colleagues of equal rank in the North and South divisions of the Traffic Branch were still doing the appraisals. She told him that she felt victimised, discriminated against and astounded by what had happened. Superintendent Laird's response to the fact that other chief inspectors were doing appraisals was that they were in other divisions and he was only concerned about what happened in Urban Traffic. In the event the appellant did not formally invoke the grievance procedure. What she did instead was to lodge an application with the industrial tribunal complaining that she had been unlawfully discriminated against on the ground of her sex.
24. Part II of the Sex Discrimination (Northern Ireland) Order 1976 describes the discrimination to which the Order applies. Article 3(1), which is headed "Sex discrimination against women", provides:
Article 7, which is headed "Basis of comparison", provides:
25. Part III of the 1976 Order deals with discrimination in the employment field. Article 8(2) provides:
The tribunal's decision
26. The appellant asked the tribunal to regard the other two chief inspectors in the Traffic Branch as comparators for the purpose of determining whether she had been treated less favourably than a man was or would have been treated. For the respondent it was submitted that neither of them were appropriate comparators. But the tribunal did not accept this submission, as the male officers were of similar rank and were carrying out similar responsibilities in their divisions to those of the appellant and no evidence had been provided that their work was materially different. The tribunal concluded unanimously that the appellant had been unfavourably treated by Superintendent Laird in respect of the appraisals. The question whether this had subjected her to a detriment within the meaning of article 8(2)(b) was not raised at the hearing either by way of evidence or of cross-examination, nor were any submissions directed to it by counsel for either party. The result was that the tribunal did not deal expressly in its decision with the question of detriment. But it appears to have proceeded on the assumption that the appellant had been subjected to a detriment. In paragraph 10 of the case stated it is recorded that the tribunal concluded unanimously that the appellant had been less favourably treated when Superintendent Laird "removed" from her the right to continue to do appraisals on constables.
27. In paragraph 3.13 of its decision the Tribunal dealt with the remaining issue in the case, which was whether what they described as "the treatment meted out" to the appellant was because she was a woman. The facts which it regarded as relevant to this issue, together with its conclusions, are set out in this paragraph in these terms:
The judgment of the Court of Appeal