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

(back to preceding text)

    73. Therefore I consider that the facts of the complaints made about the appellant and the concern of the Police Federation are clearly relevant circumstances in her case and that it is not in compliance with Article 7 to compare her case with the case of a male Chief Inspector against whom no complaints had been made as to the way in which he carried out his appraisal duties.

    74. 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…."

    75. In relation to discrimination by way of victimisation section 2 of the 1976 Act provides:

    "(1)  A person ("the discriminator") discriminates against another person ("the person victimised") in any circumstances relevant for the purposes of any provision of this Act if he treats the person victimised less favourably than in those circumstances he treats or would treat other persons, and does so by reason that the person victimised has—

    (a)  brought proceedings against the discriminator or any other person under this Act, or …".

Article 6 of the Sex Discrimination (Northern Ireland) Order 1976 which relates to discrimination by way of victimisation is in similar terms. Section 3(4) of the Race Relations Act 1976 provides:

    "A comparison of the case of a person of a particular racial group with that of a person not of that group under section 1(1) must be such that the relevant circumstances in the one case are the same, or not materially different, in the other."

This subsection is in similar terms to Article 7 of the 1976 Northern Ireland Order.

76.

    Aziz v Trinity Street Taxis Ltd [1989] QB 463 and Chief Constable of the West Yorkshire Police v Khan [2001] 1 WLR 1947 were both cases in which the complainant alleged discrimination by way of victimisation. In those cases it was held that the circumstances referred to in section 2(1) of the Race Relations Act 1976 do not include the circumstances giving rise to the treatment complained of, such as the termination of the complainant's membership of an association or the termination of his employment. The reason for the meaning given to the word "circumstances" in Aziz and Khan was explained by my noble and learned friend Lord Scott of Foscote in Khan at page 1963B as follows:

    "70.  In the submissions to your Lordships various comparators were suggested.

    71. One suggestion was that the treatment accorded to Sergeant Khan should be compared to the treatment that would have been accorded to other officers of the West Yorkshire Police who had brought discrimination proceedings against their employers. This cannot be right. It would enable an employer to justify victimising an employee who had brought proceedings under the Act by asserting that he would similarly victimise every employee who brought proceedings under the Act.

    72. Another suggestion was that the treatment accorded to Sergeant Khan should be compared to the treatment that would have been accorded to other officers who had brought employment related proceedings, but not race discrimination proceedings, against their employer. This cannot be right either. It would enable employers to victimise employees who brought race discrimination proceedings against them provided they, the employers, were prepared similarly to victimise any employee who had the temerity to sue them for anything."

    77. However, in my opinion there is an important difference between the meaning of the word "circumstances" in sections 1(1)(a) and 2(1) of the Race Relations Act 1976 and Articles 3(1)(a) and 6 of the 1976 Northern Ireland Order on the one hand, and in section 3(4) of the 1976 Act and Article 7 of the 1976 Order on the other. In sections 1(1)(a) and 2(1) and Articles 3(1)(a) and 6 the word "circumstances" occurs in the phrase "in any circumstances relevant for the purposes of any provision of this Act [Order]". The meaning of this phrase in the Sex Discrimination Act 1975 was explained by Stephenson LJ in R v Immigration Appeal Tribunal, Ex p Kassam [1980] 1 WLR 1037, 1041 C-F as follows:

    "The Act only applies to discrimination if the discrimination is "in any circumstances relevant for the purposes of any provision" of the Act: see sections 1(1), 3(1), 4(1). This phrase would seem to be an attempted improvement on the language of section 1(1) of the Race Relations Act 1968 and is also to be found in sections 1(1) and 2(1) of the Race Relations Act 1976, which repealed the Act of 1968. The language of the opening sections of the Sex Discrimination Act 1975 and the Race Relations Act 1976 would appear to express the same intention, namely to confine the discrimination with which the legislature was concerned to those practices— including not only acts but deliberate omissions: see section 82(1)— to which the provisions of Part I applied and which the provisions of Parts II to IV made unlawful. The introductory references to the "circumstances relevant for the purposes of any provision of this Act" require the court to take the provisions of Parts II to IV with the provisions of Part I and make plain that Parts II to IV exhaust the circumstances in which sex discrimination (or discrimination on the ground of marriage) as explained in Part I is unlawful."

See also per my noble and learned friend Lord Nicholls of Birkenhead in Khan at page 1953 B-C.

    78. Therefore in the phrase "in any circumstances relevant for the purposes of any provision of this Act [Order]" the "circumstances" are those in which discrimination against a person is made unlawful, viz. in the field of employment and in other fields such as education and the provision of goods, facilities, services and premises. But section 3(4) of the Race Relations Act 1976 (which does not apply to section 2(1)) and Article 7 of the 1976 Northern Ireland Order (which does not apply to Article 6) relate to "circumstances" which are different in one important respect. They relate to the relevant circumstances to be taken into account to ensure that in a case of alleged discrimination under section 1(1) or Article 3(1) (and not discrimination by way of victimisation) the comparison between the treatment of the complainant and the treatment of another person, actual or hypothetical, relied on by the complainant as a comparator, is a fair comparison, and they include circumstances which are not taken into account in victimisation cases. In a case of discrimination by way of victimisation when comparing the complainant with "other persons" the circumstances of the complainant cannot be "the same" as the circumstances of those other persons in the sense in which that term is used in section 3(4) of the 1976 Act and Article 7 of the 1976 Order because this would require the "other persons", actual or hypothetical, to have brought proceedings against their employer or employers alleging discrimination; and this cannot be right for the reason given by Lord Scott in the passage in Khan page 1963, paragraph 71, which I have cited above.

    79. Accordingly, in my opinion, the decisions in Aziz and Khan are distinguishable from the present case and do not provide guidance as to the meaning of the words "the relevant circumstances" in Article 7, and for the reasons which I have given I consider that the tribunal erred in law in regarding the Chief Inspectors in the other traffic branches as proper comparators.

    80. I would add that, in my opinion, the conclusion that in selecting a proper actual comparator account must be taken of complaints against a female complainant which can fairly be regarded as a reason for removing duties from her does not mean that a woman alleging sexual discrimination is deprived of the protection given to her by Article 3(1) of the 1976 Order. The reason is because a female complainant can request the tribunal to consider a hypothetical comparator - in this case he would be a Chief Inspector against whom similar complaints had been made in respect of the way in which he carried out his appraisal duties.

    81. The way in which, where there is no proper actual comparator, a female complainant can rely on a hypothetical comparator is well illustrated by the decision of the Employment Appeal Tribunal in Chief Constable of West Yorkshire v Vento [2001] IRLR 124. In that case Mrs Vento claimed sexual discrimination when she was not confirmed in post at the end of her probationary period as a police constable, and she was therefore dismissed. One of the chief grounds for her non-confirmation was the view of her Chief Inspector that she had been dishonest. She had been told by her sergeant, or some other superior officer, to walk to an incident at a store called Mr Value, but had accepted a lift in a police car and then told the sergeant that she had walked. The employment tribunal upheld her claim and the appeal by the Chief Constable was dismissed by the Employment Appeal Tribunal.

At page 125 para 7 Lindsay J stated:

    "7.  We would readily accept that the treatment of an actual male comparator whose position was wholly akin to Mrs Vento's in relation to the Mr Value incident was not in evidence. It followed that the tribunal had to construct a picture of how a hypothetical male comparator would have been treated in comparable surrounding circumstances. One permissible way of judging a question such as that is to see how unidentical but not wholly dissimilar cases had been treated in relation to other individual cases. That is one approach. Another permissible approach is to ask witnesses how the hypothetical case that requires to be considered would have been dealt with, although great care has to be exercised in assessing the answers to questions such as that, because the witness will be aware that it will be next to impossible to disprove any answer to a hypothetical question and also witnesses will know, by the time of the tribunal hearing, what sort of answer is convenient or helpful to the side that they might wish to support."

    82. At page 126 para 11 Lindsay J set out the conclusion of the employment tribunal that "the applicant was less favourably treated than a hypothetical male officer would have been in the same circumstances" and then stated:

    "12.  Three things, I think, need to be said. It cannot, in our view, be said that such a conclusion as to the treatment that would have been meted out to a hypothetical male comparator in like circumstances represents so outlandish an inference or extrapolation from the actual cases examined by the tribunal as to be a conclusion without support of any evidence or otherwise to be such that the tribunal, properly instructing itself, could not have arrived at it. Secondly, the conclusion expressed by the tribunal is wide enough by its reference to 'in the same circumstances' to include the more particular case which the notice of appeal complains was not addressed. Thirdly, it is all too easy to become nit-picking and pedantic in the approach to comparators. It is not required that a minutely exact actual comparator has to be found. If that were to be the case, then isolated cases of discrimination would almost invariably go uncompensated. It is thus the case that inferences will very frequently need to be drawn. They are not, of course, to be drawn from thin air. But, equally, the facts from which they are drawn do not have to be such that the inference found is the only possible conclusion which those facts could lead to. It is properly to be left to the good sense of the tribunal that also has the advantage of seeing and hearing the witnesses giving such explanations as they may of those surrounding circumstances.

    13.  Here the tribunal concluded as we have cited in respect of Mrs Vento being treated less favourably than would have been a hypothetical male officer in the same circumstances. The reference to 'the same circumstances' plainly is intended to include the Mr Value incident."

It is apparent from paragraph 13 that the employment tribunal and the Employment Appeal Tribunal considered that the Mr Value incident was part of the relevant circumstances and in my opinion they were right to do so.

    83. In the present case the appellant did not rely on a hypothetical male comparator ie a male Chief Inspector in respect of whom similar complaints in relation to appraisal reports or the discharge of somewhat similar duties had been made, but based her case on a comparison with actual male Chief Inspectors against whom no complaints had been made. I further consider that there was no evidence before the tribunal which would have entitled them to find that if similar complaints had been made against a male Chief Inspector he would have been treated more favourably than the appellant. I also think that in the present case the Court of Appeal did not fail to consider a possible male hypothetical comparator because Carswell LCJ stated at page 11:

    "In our view if [the tribunal] had adopted the correct test it was bound to reach the conclusion that the other chief inspectors were not valid comparators and that it had not been established that the RUC had treated her less favourably than it would have treated any other officer in the same circumstances." (Emphasis added).

On the ground of her sex

    84. In my opinion the matters set out in paragraphs 3.3 to 3.8 of the tribunal's decision and the observations made by the tribunal in paragraph 3.12 appear to provide an obvious explanation as to why Superintendent Laird decided to remove appraisal duties from the appellant and to show that his decision did not relate to her sex.

    85. The tribunal explained its decision on the question whether the treatment of the appellant was on the ground of her sex as follows:

    "3.13  The tribunal then had to give consideration to the question as to whether the treatment meted out to her was because she was a woman.

    It was common knowledge that the policy relating to appraisals was to change in December 1997. It was therefore open to the Superintendent to question the Federation as to the need to strictly follow the Force Regulations when they were to be changed in less than three months. There did not appear to be any urgent need to change what had become the custom and practice within the Force generally that Chief Inspectors did the counselling of Constables. In addition by the time of the Federation meeting the offending section in Constable Currie's appraisal had been deleted on Superintendent Laird's evidence. If that was so, what was the need for such a meeting? Constable Currie was now satisfied. The only change as a consequence of the meeting was that the applicant had the completion of appraisals taken from her. That seems to have been the prime reason for the meeting. As far as the tribunal are aware, the Federation did not make any further representations within the Force with regard to Chief Inspectors doing counselling and the strict compliance with the Regulations.

    The majority of the tribunal were of the opinion that there was sufficient material from which it could reach the opinion that the applicant had been discriminated against on the grounds of her sex. The majority of the tribunal accepted that the changing of what had been the custom and practice regarding the completion of staff appraisals by Chief Inspectors only related to the applicant, and were satisfied that she had been treated differently because she was a woman. The minority member was of the opinion that the less favourable treatment was not because of her gender and was of the opinion that a male Chief Inspector in similar circumstances would have received similar treatment."

    86. In my opinion the majority of the tribunal gave no reasons in the first two sentences of the last subparagraph of paragraph 3.13 to show why they considered that the treatment of the appellant was on the ground of her sex, and why their opinion was right and the opinion of the minority member was wrong. The law is clear that an appellate court should not substitute its own opinion for the opinion of the tribunal, and that the decision of a tribunal should not be subjected to a detailed and critical analysis. But the law is also clear that a tribunal must state the reasons which led them to reach their conclusion. A party is entitled to know why he lost. In Meek v City of Birmingham District Council [1987] IRLR 250, 251 Bingham LJ stated:

    "It has on a number of occasions been made plain that the decision of an Industrial Tribunal is not required to be an elaborate formalistic product of refined legal draftsmanship, but it must contain an outline of the story which has given rise to the complaint and a summary of the Tribunal's basic factual conclusions and a statement of the reasons which have led them to reach the conclusion which they do on those basic facts. The parties are entitled to be told why they have won or lost. There should be sufficient account of the facts and of the reasoning to enable the EAT or, on further appeal, this court to see whether any question of law arises; and it is highly desirable that the decision of an Industrial Tribunal should give guidance both to employers and trade unions as to practices which should or should not be adopted."

    87. It is possible that the majority of the tribunal took the view (although on the facts found by the tribunal there appears to be nothing to support such a view) that if the Chief Inspector who had made the appraisal reports on Constable Lowens and Constable Currie which had given rise to complaints had been a man, the Superintendent would not have complied with the request of the Federation and would have defended him against the Federation's complaint, but did not do so in this case because the Chief Inspector was a woman. But an equally possible view is that if a male Chief Inspector had commented in the appraisals of Constable Lowens and Constable Currie in the terms used by the appellant, and those constables had complained and the Federation had requested a meeting, the Superintendent would also have taken the decision to take away the task of completing the appraisals from that male Chief Inspector. The majority of the tribunal do not say that the first view was the one which they had taken and, if it was, why they considered that it was the correct view and not the other view. Therefore I consider that Carswell LCJ was correct to state at pages 11-12 of the judgment of the Court of Appeal:

    "Adopting for the purposes of this argument the hypothesis that the respondent had been treated differently from male officers, the tribunal would be entitled to consider the possibility of sex discrimination and look to the employer for an explanation. That explanation is furnished in the present case by the fact that complaints were made about the respondent's discharge of her duties and the Police Federation made representations about her. The onus then remains with the claimant to establish that her different treatment was on the ground of her sex. There is no evidence to be found in the case stated or the tribunal's decision which would furnish any basis for such a finding…."

    88. I would apply to the decision of the tribunal in this case the words of Pill LJ in Hazelhurst and others v Governors of Warwick Park School [2001] EWCA Civ 2056 para 28 where the applicants alleged racial discrimination:

    "In my judgment, it is quite impossible, looking at the detailed findings as a whole, to find a decisive pointer towards a racially discriminatory attitude. It is impossible to find in the judgment of the Employment Tribunal any reason why they drew the inference they did from the facts they found. Bingham LJ stated in Meek that a party before an employment tribunal is entitled to know why it lost. The respondents in this case have no sufficient indication of that from the judgment of the Employment Tribunal. In the absence of reasoning, there is a real danger that the inference has been wrongly drawn."

    89. Therefore, for the reasons which I have given, I am of opinion that the appellant failed to establish that she had been treated less favourably by Superintendent Laird than he treated or would have treated a male police officer. I am further of opinion that there was no evidence set out in the tribunal's decision and no reasons given by the majority of the tribunal which justified a finding that the treatment which the appellant received was on the ground of her sex.

    90. In some circumstances where a tribunal fails to give adequate reasons for their decision justice may require that the case should be remitted to the original tribunal to state their reasons more fully or that the case should be remitted to a differently constituted tribunal for a new hearing. But in this case I consider that the proper course is to uphold the decision of the Court of Appeal to reverse the tribunal's decision and to dismiss the appellant's complaint because there was no evidence before the tribunal upon which they could properly find that Superintendent Laird treated her less favourably than he treated or would have treated a male police officer. Accordingly I would dismiss this appeal.

    Detriment

    91. If the appellant had proved that she had been discriminated against by Superintendent Laird on the ground of her sex, I consider, for the reasons given by my noble and learned friend Lord Hope of Craighead, that she would have been entitled to a finding that she was subjected to a detriment and that the judgment of the Court of Appeal on this point, delivered before the judgment of this House in Chief Constable of the West Yorkshire Police v Khan [2001] 1 WLR 1947, should not be followed.

LORD SCOTT OF FOSCOTE

My Lords,

    92. The relevant act of sex discrimination of which the appellant complains is succinctly described in the application of 9 December 1997 that she made to an industrial tribunal for Northern Ireland:

    "In September 1995 I was promoted to the position of Chief Inspector and am attached to the Urban Traffic Region. Part of my duties and responsibilities since appointment to the position of Chief Inspector has been in counselling constables regarding their staff appraisals. However since October of this year I have not been allocated any staff appraisals. I know that male colleagues in similar positions continue to carry out such counselling and therefore believe that I am being treated less favourably on grounds of sex by not being allocated these duties."

    93. The facts underlying this complaint are, with one important exception, not in dispute. The important exception is whether the decision to withhold staff appraisal duties from the appellant was taken because of her sex. There is no other relevant fact in dispute.

    94. From September 1995 to the time the alleged act of discrimination took place the appellant held the rank of Chief Inspector and was attached to the Urban Traffic Branch, one of three branches within the Traffic Branch of the Royal Ulster Constabulary ("the RUC"). The other two branches were the South Branch and the North Branch. In February 1997 Superintendent Laird became the head of the Urban Branch and the appellant's immediate superior. The South Branch and the North Branch each had its own Superintendent. The Traffic Branch was headed by a Chief Superintendent.

    95. The RUC operated a Staff Appraisal Scheme under which all officers up to the rank of Superintendent were subjected to annual appraisals. An appraisal had two stages. First there had to be a report compiled by an "assessing officer". Then there had to be an interview with a "counselling officer" (para 3.1 of the Scheme). Naturally, the assessing officer and the counselling officer had to be of a rank senior to that of the officer being appraised. Paragraph 3.2 of the Scheme made provision for this. It provided that, where a constable was being appraised, "normally" the assessing officer would be an inspector and the counselling officer would be a superintendent. The adverb "normally" was presumably intended to cater for unforeseen emergencies or staff shortages.

    96. But notwithstanding the terms of paragraph 3.2 of the Scheme, a practice had become established in the RUC, including in the Traffic Branch, under which the counselling officer for the appraisal of constables would be a Chief Inspector rather than a Superintendent. Consistently with this practice the appellant acted as counselling officer on the appraisal of Urban Branch constables on a number of occasions. Her counterparts, the Chief Inspectors in the South Branch and the North Branch, did likewise in respect of constables in their Branches.

    97. On two occasions in 1997 complaints to Superintendent Laird were made by constables about the manner in which the appellant had conducted their respective appraisals. The second constable to complain, Constable Currie, not only complained to Superintendent Laird but also took his complaint to the Police Federation. The Federation's representatives required a meeting with Superintendent Laird about the appraisal procedures. The meeting took place on 6 October 1997. In the course of the meeting Superintendent Laird was referred to paragraph 3.2 of the Staff Appraisal Scheme and was constrained to agree that its requirements were not being strictly observed in that the appellant, a Chief Inspector, was acting as counselling officer on the appraisal of constables. The Superintendent agreed with the Federation representatives that in future paragraph 3.2 of the Staff Appraisal Scheme would be complied with and that the appellant would not carry out counselling officer duties on the appraisal of constables otherwise than in cases where, due to his absence, he was unable to carry out those duties himself.

    98. Important background to this meeting and to the Superintendent's agreement to comply with the letter of the Staff Appraisal Scheme requirements was that a revised scheme was due to be implemented in December 1997 and that under the revised scheme the counselling officer on constable appraisals was to be a Chief Inspector. This was common knowledge. It would have been known both to Superintendent Laird and to the Federation representatives at the 6 October 1997 meeting. So the withholding of counselling officer functions from the appellant would continue only until the implementation of the revised scheme in December that year.

    99. On these facts, and after hearing evidence from, among others, Superintendent Laird, the Industrial Tribunal came to a majority conclusion that the appellant "had been unlawfully discriminated against on the grounds of her sex with regard to the removal of the right to carry out appraisals" (p 8 of the Appendix Part I). The Tribunal's expressed reasons for coming to this conclusion are important.

    100. First, the Tribunal dealt with the position of the Federation:

    "The applicant under cross-examination made an allegation that the Federation …. had been guilty of discrimination against her. The Federation were not a party to these proceedings and the tribunal were not required to reach a conclusion on that issue. It is clear that they did not make the same representations in respect of male Chief Inspectors in other traffic regions." (p 17 Appendix I).

 
continue previous