Judgments - Shamoon (Appellant) v Chief Constable of the Royal Ulster Constabulary (Respondent) (Northern Ireland)

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    52. The requirement that it must be shown that at least one other person whose circumstances were in fact comparable to those of the complainant was treated differently introduces a step into the exercise which is not found in the legislation. The way the case was argued for the appellant may have invited this approach, as her case depended on accepting the other chief inspectors as valid comparators. But I do not think, with great respect, that this can be regarded as a rule which must be applied in all cases. There could be cases where the position held by the complainant was the only one of its kind and incapable of being compared with that held at the relevant time by anyone else in the employer's organisation. The words "or would treat" in article 3(1) of the Order permit the question whether there was discrimination against a woman on the ground of her sex to be approached on a hypothesis. The crucial question is whether there was discrimination, and it would defeat the purpose of the Order if this question could not be addressed simply because the complainant was unable to point to anyone else who was in fact in the same position as she was. Isolated or unique cases would be left without the protection which the legislation is designed to provide. The flaws which I detect in the Court of Appeal's reasoning lie in its assumption that it was necessary for the appellant to show, as part of the relevant circumstances, that there were in fact other chief inspectors over whom Superintendent Laird had responsibility in whose case too there had been complaints and representations and in its conclusion that, because she had not done this, her case must necessarily fail.

    53. The approach to the various questions raised by article 3(1)(a) which seems to me to be best suited to the circumstances of this case, on its own facts, is this. It is to regard the male chief inspectors in the Traffic Branch and the work they did as a starting point, but no more than a starting point, for the comparison which is invited by the wording of the article. The position of the two male chief inspectors was directly comparable with the appellant's position in at least three respects that were directly relevant to hers. They were of the same rank, they were serving in the same branch (although not in the same division) and they too had been carrying out staff appraisals in accordance with the recognised custom and practice in the force. The appellant had been deprived of this part of her work which the male chief inspectors were continuing to do. The next step is to consider, hypothetically, whether the appellant was treated less favourably than they would have been if the complaints had been made against them and representations had been made by the Police Federation in their case and if they too had been serving in the division for which Superintendent Laird was responsible.

    54. The respondent's case is that the reason for the difference in treatment is that in the appellant's case there were complaints and representations. The vital question, to which I now turn, is whether this truly is the reason why she was treated as she was by her employer or whether, as the appellant alleges, the difference in treatment was on the ground of her sex. Article 3(1)(a), as I have said, permits this question to be approached hypothetically. Let it be assumed that the other chief inspectors - the hypothetical comparators - were in the same division and the subject of the same complaints and representations as the appellant, so that the only difference between them and the appellant is that they were all men. The question is whether the way in which the appellant was in fact treated was different from the way the other chief inspectors would have been treated if they too were persons over whom Superintendent Laird had responsibility and the complaints and representations had been directed against them. If the answer to that question is yes, and there is no other explanation, it can be inferred that she was treated less favourably than they would have been on the ground of her sex.

On the ground of her sex

    55. Claims brought under the legislation about discrimination present special problems of proof for applicants, as Lord Browne-Wilkinson pointed out in Zafar v Glasgow City Council [1998] IRLR 36, 38-39, para 16. As he said in that case, those who discriminate on grounds of race or gender do not in general advertise their prejudices. They may indeed not even be aware of them. It is unusual to find direct evidence of an intention to discriminate. So the outcome in a case of this kind will usually depend on what inferences it is proper to draw from the primary facts found by the tribunal. In Nagarajan v London Regional Transport [2000] 1 AC 501, 511A-B Lord Nicholls of Birkenhead said that, save in obvious cases, this question will call for some consideration of the mental processes of the alleged discriminator:

    "Treatment, favourable or unfavourable, is a consequence which follows from a decision. Direct evidence of a decision to discriminate on racial grounds will seldom be forthcoming. Usually the grounds of the decision will have to be deduced, or inferred, from the surrounding circumstances."

    56. The approach which should be taken to the evidence was explained by Neill LJ in King v Great Britain-China Centre [1991] ICR 516, 528-529:

    "(4) Though there will be some cases where, for example, the non-selection of the applicant for a post or for promotion is clearly not on racial grounds, a finding of discrimination and a finding of a difference in race will often point to the possibility of racial discrimination. In such circumstances the tribunal will look to the employer for an explanation. If no explanation is then put forward or if the tribunal considers the explanation to be inadequate or unsatisfactory, it will be legitimate for the tribunal to infer that the discrimination was on racial grounds."

That was a case of racial discrimination, but the approach which Neill LJ described is equally capable of being applied where the allegation is that the discrimination was on the ground of sex.

    57. In this case the appellant was, as I have said, entitled to a finding that she was treated less favourably than the male chief inspectors. In other words, she had been discriminated against and she was a woman while they were men. It cannot be said that the discrimination was clearly not on the ground of her sex. There was no evidence to that effect. The tribunal say in paragraph 3.11 that there was no evidence that the work of the male chief inspectors was materially different from hers. So this was a case where it was for the employer to provide an explanation. The evidence on which the respondent relied for the explanation was the evidence of Superintendent Laird. If the tribunal was of the view that his explanation was inadequate or unsatisfactory, it was open to it to infer that the discrimination was on the ground of the appellant's sex.

    58. The Court of Appeal said that the conclusion of the majority of the tribunal set out in paragraph 3.13 of its decision was unsupportable and that no reasonable tribunal could have reached such a conclusion on the evidence which it set out. The reasons why the majority felt able to conclude that the appellant had been treated differently because she was a woman are clearly vulnerable to this criticism, as the tribunal appears to have proceeded on the basis that the other chief inspectors could be treated as valid comparators. The conclusions of the majority and of the minority member are set out, but no explanation is given as to why they reached different views after reviewing the evidence.

    59. An appellate court should hesitate before it decides to reverse the decision of the tribunal on a matter of this kind. The question which was at issue here was a question of fact, and the tribunal had the advantage of seeing and hearing the witnesses. In a case such as this, where direct evidence of discrimination is absent and so much depends on inference, this is a crucial advantage which the appellate court does not share. It has also been recognised that a generous interpretation ought to be given to a tribunal's reasoning. It is to be expected, of course, that the decision will set out the facts. That is the raw material on which any review of its decision must be based. But the quality which is to be expected of its reasoning is not that to be expected of a High Court judge. Its reasoning ought to be explained, but the circumstances in which a tribunal works should be respected. The reasoning ought not to be subjected to an unduly critical analysis.

    60. There are several indications in the decision that the tribunal was dissatisfied with Superintendent Laird's evidence. He contended that neither Constable Currie nor the appellant were mentioned directly during the discussions at his meeting with the Federation and that they were only alluded to. But the tribunal concluded in paragraph 3.8 that it is highly probable that they were discussed at that meeting. In paragraph 3.12 several options other than the course which was actually taken by Superintendent Laird are set out. He could have asked the Federation whether they were proposing to take the issue about appraisals up with the Force generally or sought further guidance or checked with other regions as to what his response should be before acting in the appellant's case. He did not raise the matter at the monthly meetings of senior officers, and he acted without delay although it was common knowledge that the procedures were to be changed in December. The tribunal declined to hold that the Police Federation was discriminating against the appellant, as it was not a party to the proceedings. But the fact was, as the tribunal point out in paragraph 3.12, that it did not make the same representation that the strict letter of the rules about staff appraisals should be followed in the case of male chief inspectors in the traffic regions. Although the tribunal do not say this in terms, it must have been obvious to Superintendent Laird that the appellant was being singled out in this respect. It appears that the tribunal was of the opinion that he was being less than frank when he was giving his explanation.

    61. The discussion of these points by the tribunal is brought to a head in the first of the two paragraphs which I have quoted from paragraph 3.13. As I read this paragraph, it attempts to set out the basis for the inference which the majority felt able to draw that the appellant had been discriminated against on the ground of her sex. In summary, the following points are made. It was open to Superintendent Laird to stand up to the Federation's representatives and resist the demand for strict compliance with the rules. The policy was to be changed in a few weeks' time, and the complaint by Constable Currie had already been dealt with as the offending passage had been deleted from his appraisal and he was satisfied. What then was the need for the meeting or for the practice which everyone had been following up to now to be changed? The appraisals were taken away from the appellant without delay or consultation, but they were not taken away from the chief inspectors who were men.

    62. It would not have been in the least surprising if, in the light of this background, Superintendent Laird had conceded that he gave in to the Federation more readily than he would have done in the case of the male comparators because the appellant was a woman. Of course he did not make that concession. But one must bear in mind the fact, which Lord Browne-Wilkinson alluded to in Zafar v Glasgow City Council [1998] IRLR 36, that men in his position do not advertise their prejudices and may indeed not even be aware of them. Lowry LCJ was making the same point in Wallace v South Eastern Education and Library Board [1980] IRLR 193 when he said:

    "Only rarely would direct evidence be available of discrimination on the ground of sex; one is much more often left it infer discrimination from the circumstances. If this could not be done the object of the legislation would be largely defeated so long as the authority alleged to be guilty of discrimination made no expressly discriminatory statements"

I think that it would have been open to the tribunal to draw that inference.

Conclusion

    63. But was this the basis for the decision by the majority? I have not found this an easy question to answer. In the end, however, I have been persuaded for the reasons given by my noble and learned friend Lord Hutton that the failure by the majority to explain why they took the view they did is a fatal defect. The fact that there was a division of opinion in the tribunal made it all the more necessary for a clear explanation to be given in the findings of fact for the decision which they reached. But the tribunal's findings of fact do not point decisively to the conclusion that Superintendent Laird's decision was discriminatory. In the absence of such findings the basis for the majority's decision is left to conjecture and there are tenable grounds for thinking that, when all the facts are taken into account, it was wrong. The only explanation which is given by the majority is that they accepted that it was only in the appellant's case that the custom and practice regarding the appraisals by chief inspectors was changed, and that they were satisfied that she was treated differently because she was a woman. The first of these propositions was not disputed. But what was the factual basis for saying that this was because of the appellant's sex? Perhaps because of the error into which the tribunal had fallen of thinking that the other chief inspectors could be treated as valid comparators, the majority appear to have overlooked the fact that, as the circumstances of the other chief inspectors were not the same as those of the appellant, it was necessary to approach this question hypothetically. It was not enough simply to point to the fact that she was treated differently from the way the other chief inspectors were treated. But there is no indication in the reasoning of the majority that any consideration was given to the question how they would have been treated, on the assumption that their circumstances were the same as those of the appellant in all respects. There is a gap here in the majority's reasoning which the findings of fact cannot fill.

    64. That being so, although I am unable to agree with every step in the Court of Appeal's reasoning, I respectfully agree with the result which it reached which was that the conclusion of the majority is unsupportable on the facts and that the decision of the tribunal should be reversed.

    65. The Court of Appeal answered questions 1, 2 and 4 of the questions posed in the case stated in the negative and declined to answer question 3. All these questions proceed upon assumptions about what the tribunal decided. As the basis for the decision is so lacking in explanation, I think that the better course would be to decline to answer any of them. I would dismiss the appeal.

LORD HUTTON

My Lords,

    66. The principal question which arises on this appeal is whether Superintendent Laird discriminated against the appellant on the ground of her sex when he removed from her the role of counselling officer in the appraisals of constables in the Urban Traffic Branch of the Royal Ulster Constabulary ("the RUC"). This question is to be determined in accordance with the provisions of Article 3(1)(a) and Article 7 of the Sex Discrimination (Northern Ireland) Order 1976.

    67. Article 3 provides:

    "(1)  A person discriminates against a woman in any circumstances relevant for the purposes of any provision of this Order if—

    (a)  on the ground of her sex he treats her less favourably than he treats or would treat a man."

Article 7 provides:

    "A comparison of the cases of persons of different sex …. under Article 3(1) …. must be such that the relevant circumstances in the one case are the same, or not materially different, in the other."

    68. Section 1 of the Race Relations Act 1976 provides:

    "(1)  A person discriminates against another in any circumstances relevant for the purposes of any provision of this Act if—

    (a)  on racial grounds he treats that other less favourably than he treats or would treat other persons".

In Zafar v Glasgow City Council [1998] IRLR 36, 38 Lord Browne-Wilkinson observed:

    "Although, at the end of the day, s.1(1) of the Act of 1976 requires an answer to be given to a single question (viz has the complainant been treated less favourably than others on racial grounds?), in the present case it is convenient for the purposes of analysis to split that question into two parts— (a) less favourable treatment, and (b) racial grounds - as did the Second Division."

    69. Article 3(1)(a) of the Sex Discrimination (Northern Ireland) Order 1976 and section 1(1) of the Race Relations Act 1976 are somewhat different in their practical application, because if an employer treats a female employee less favourably than he treats or would treat a male employee, it is often implicit in such treatment that it takes place on the ground of her sex, whereas an employer may well treat an employee less favourably than he treats or would treat other employees for reasons other than race. This difference emphasises the importance of bearing in mind that, in essence, Article 3(1)(a) of the Northern Ireland Order requires an answer to be given to a single question. I further consider that making too rigid a distinction between the question— (a) has there been less favourable treatment and (b), if so, has it been on the ground of sex, has tended to create difficulties in deciding who are the appropriate comparators in particular cases. However I recognise that the splitting of the question into two parts has been done in many cases and has certain advantages for the purposes of analysis, and therefore I am content to consider the present case under these two heads.

Less Favourable Treatment

    70. The determination of this issue requires a comparison to be made between the case of the appellant and the case of an actual, or hypothetical, male officer in the RUC. It is clear that the tribunal considered that the Chief Inspectors in the other regions of the Traffic Branch were proper actual comparators, because they stated in paragraph 3.11 of their decision:

    "The applicant's comparators were the Chief Inspectors in the other regions. The Federation never raised any objection to any other Chief Inspector doing appraisals. Mr Grant submitted that neither of these Chief Inspectors were appropriate comparators. The tribunal do not accept this submission and are of the opinion that the comparators came within the terms of Article 7 Sex Discrimination (Northern Ireland) Order 1976. The Chief Inspectors were in Traffic Branch holding similar rank and carrying out similar responsibilities in their regions as to the applicant. No evidence was provided that their work was materially different from that of the applicant."

    71. Article 7 requires that in comparing for the purposes of Article 3(1)(a) the case of the female complainant and the case of a male comparator, actual or hypothetical, the relevant circumstances in the one case must be the same, or not materially different, in the other. Therefore the question which arises is whether the decision of the tribunal that the Chief Inspectors in the other regions of the Traffic Branch were proper comparators complies with the requirements laid down in Article 7. Article 7 directs attention to the relevant circumstances in the complainant's case. What are the relevant circumstances in a particular case will obviously depend upon the facts of that case, and in order to determine the relevant circumstances in the present case I think it is desirable to set out in full the paragraphs of the tribunal's decision describing the way in which the appellant carried out her role as a counselling officer in appraisals and the complaints of Constable Lowens and Constable Currie about her comments on them, and Superintendent Laird's subsequent meeting with representatives of the Police Federation:

    "3.3  She said the first indication that Superintendent Laird was not happy with the manner in which she conducted appraisals arose in April 1997 in relation to Constable Lowens. In that case Superintendent Laird upheld a complaint by the Constable regarding the assessment.

    The next problem arose in respect of Constable Currie's appraisal in September 1997. The reporting officer was Inspector Foster and the applicant was the counselling officer. She was unhappy about several matters in the report and expressed disappointment having regard to the length of time Constable Currie was in Urban Traffic. It was clear that he had problems but was not willing to discuss them with her. In her general comments she made a reference to drawing an analogy between him and the person "who won't give the reason for poor performance caused by drink, unless he admitted he was an alcoholic then it couldn't be classed as a disease". Although Constable Currie originally signed the appraisal, it soon became evident that he was unhappy about the reference to 'alcoholic' by the applicant. Constable Spratt, who was the Constable's representative on the Police Federation and also Vice Chairman of the Federation, came to Superintendent Laird and complained on behalf of Constable Currie. Although the Superintendent understood what the Chief Inspector was referring to, he thought it was only fair to the Constable to have the words deleted. He discussed the matter with her and although she was unhappy she said "if it keeps him happy, take it out". At this stage the Superintendent considered the matter finished.

    3.4  The applicant said there were rumours in the Branch that Constable Currie had gone to a solicitor. Although the applicant's evidence was that a letter had been received and she had seen it on Superintendent Laird's desk, the tribunal accept that the rumour only extended to the fact that Constable Currie was going to see a solicitor. No letter from a solicitor existed. Constable Currie did complain to the Federation and the Federation asked for a meeting with the Superintendent.

    3.5  The Federation, represented by Inspector Foster, Sergeant Wilson and Constable Spratt, met with the Superintendent on 6 October. They had indicated they wanted a meeting regarding staff appraisals. Superintendent Laird's evidence was that Constable Currie's appraisal was not directly referred to, although he admitted there were illusions (sic) to recent problems. He also denied that the discussion directly referred to the applicant, notwithstanding the reference to recent problems.

    3.6  Prior to the Federation meeting Superintendent Laird had spoken to the applicant regarding the proposed meeting. Her view was that they were up to something and he should not give them an inch and that Constable Spratt was "too big for his boots". The applicant's journal entry for 9 October clearly shows that she wanted the Superintendent to take a strong line with the Federation representatives. She notes that "my worst fears have been realised, he had indeed wavered at my expense. I was very disappointed in him." Despite the importance of the Federation meeting with the Superintendent, he made no mention of it in his journal.

    3.7  There was a conflict of evidence regarding what happened afterwards. The applicant said that she had to probe the Superintendent as to what had happened at the meeting and that he gave a vague reply that it went alright. When she asked him about the staff appraisal issue his reply was that "from now on I will be doing them".

    The Superintendent's recollection is that he sought out the applicant to acquaint her with what had taken place. He told her that he had agreed with the Federation that in future he would do the staff appraisals although she would be entitled to do them when acting-up on his behalf. He said the applicant was angry and annoyed that he had conceded the point with the Federation. He admitted that the applicant mentioned that the Chief Inspectors in the other regions were still doing appraisals and that it was common practice throughout the Force. His response was, that may be the case but he was only concerned with what happened in Urban Traffic and he wished to maintain good relations with the Federation.

    3.8  The Superintendent's meeting with the Federation lasted somewhere in the region of two hours. They asked him regarding his policy on staff appraisals and he assured them that he was not going to break policy or procedures and will be using the present system to its best advantage. At this point Constable Spratt said "did he realise that he was the one responsible for counselling constables?". Constable Spratt referred him to the Force Regulations. Superintendent Laird admitted that he did not have knowledge of the precise regulations and asked for a copy. The tribunal were referred to paragraph 3.2 which provided that reports would normally be done by those listed and the counselling officer for Constables was Superintendent. He said Constable Spratt was clearly right and he realised the strict letter was not being followed. In these circumstances he considered he had to agree to amend the practice as it was highly important to retain a good honour bound (sic) and trustworthy relationship with the Federation. The Superintendent said the agreement with the Federation was that he would do the appraisals but in his absence the Chief Inspector would do them.

    Although the Superintendent contended that Constable Currie and the applicant were not named directly during discussions and were only alluded to at the meeting, the tribunal would accept that it was highly likely that they were discussed as it was put to the applicant in cross-examination that she knew very well "it is you they came to Superintendent Laird about". If that was the case it is highly probable that she was discussed at the meeting."

    In paragraph 3.12 the tribunal made the following observations:

    "The delegation to Superintendent Laird was made up of representatives from each rank in Urban Traffic. Constable Spratt, as Vice Chairman of the Federation, would clearly have been there in a dual role. Superintendent Laird's evidence was that they came to speak to him regarding the appraisals. However the tribunal can only infer that the reason for the meeting was the disagreement over Constable Currie's appraisal and the applicant's comment on that appraisal regarding alcohol. Superintendent Laird's evidence was that he had already deleted the disputed sentence from the appraisal before the meeting with the Federation and his decision to do so was not influenced by the Federation. This may be so; however the meeting with the Federation was on 6 October and Constable Currie's appraisal as amended was signed by the Superintendent on 9 October."

    72. On the facts set out in paragraphs 3.3-3.8 and having regard to the observations made in paragraph 3.12, it appears to be a reasonable inference that the reason why Superintendent Laird decided to take away from the appellant the completion of appraisal reports on constables in the Urban Traffic Branch was because she had made appraisals of two constables (which included the unfortunate analogy to an alcoholic in the appraisal of Constable Currie) which had given rise to complaints by them (in the case of Constable Currie his complaint being conveyed through his representative on the Police Federation) and the complaints had been upheld by Superintendent Laird. The Police Federation had then asked for a meeting and, as the tribunal stated in paragraph 3.12, the reason for the meeting was the disagreement over Constable Currie's appraisal and the appellant's comment on that appraisal regarding alcohol. These facts appear to provide an obvious explanation as to why Superintendent Laird decided to remove the task of completing appraisal reports from the appellant.

 
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