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

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    133. I would therefore reject both the appellant's and the Chief Constable's interpretation of article 7.

    134. Parliament has not spelled out what constitute "the relevant circumstances" in article 7. The meaning of the words must therefore be deduced from the context. They occur in a provision prescribing how anyone administering the Order is to determine whether an alleged discriminator treated a woman less favourably than a man on the ground of her sex under article 3(1). So "the relevant circumstances" must be those circumstances that are relevant for that purpose. In Nagarajan v London Regional Transport [2000] 1 AC 501, 510H - 511B, Lord Nicholls of Birkenhead pointed out that in every case of alleged discrimination it is necessary to enquire why the complainant received less favourable treatment. As he went on to say, save in obvious cases, this will call for some consideration of the mental processes of the alleged discriminator in order to identify the grounds of his decision. I accordingly infer that "the relevant circumstances" in article 7 are those which the alleged discriminator takes into account when deciding to treat the woman as he does or when deciding to treat the man as he treats, or would treat, him.

    135. It is, I think, obvious that the circumstances which the alleged discriminator takes into account when deciding to treat the woman as he does will be relevant for the purposes of article 7. So, for instance, if an employer dismissed a woman because she was persistently late for work over a three-month period, then the relevant circumstances will be her persistent lateness over a three-month period. In terms of article 7 the employer's treatment of the woman must be compared with how he treats or would treat a man in the same or not materially different circumstances, i e where he too has been persistently late for work over a three-month period.

    136. The relevant circumstances for the purposes of article 7 cannot be confined, however, to those which the alleged discriminator takes into account when deciding to treat the woman as he does. That would exclude many cases of discrimination from the protection of the Order. Suppose, for instance, that an employer dismissed a woman who was persistently late for work over a three-month period and in doing so he left out of account her explanation that she was late because of problems in looking after her aged mother. If, faced with a man in the same circumstances, the employer took into account his problems in looking after his mother and therefore decided to reprimand rather than dismiss him, then those problems would be a relevant circumstance in his case. Therefore, for the purpose of the comparison required by article 7, those problems would be among the relevant circumstances, even though the employer had not taken the same problems into account in deciding how to treat the woman. Indeed, it is precisely because the employer took account of those problems in the case of the man but ignored them in the case of the woman that he treated her less favourably by dismissing her. If he did this on the ground of her sex, then she will have a valid claim under article 8(2)(b). Article 7 allows for this when it says that the relevant circumstances "in the one case" are to be the same, or not materially different, "in the other". The comparison runs, and is intended to run, in both directions. So circumstances which the alleged discriminator takes into account or would take into account in the case of the male comparator are relevant if they were also present, though not taken into account, in the case of the woman.

    137. Since the Race Relations Act is drafted in the same way, Zafar v Glasgow City Council may serve as an illustration how tribunals and courts have approached this matter. There the applicant was an Asian employee who had been dismissed on the ground that he had sexually harassed clients of the council's social welfare department and fellow employees. He claimed that the council had discriminated against him on racial grounds. The industrial tribunal held that for various reasons the applicant's dismissal had been unfair. In a sentence which followed immediately on the passage approved by Lord Browne-Wilkinson and which explains what was meant by "the same circumstances" at the very end of that passage, the Second Division of the Court of Session said, 1996 SC 502, 505H - I:

    "There is nothing whatever in the industrial tribunal's findings which suggests that in the present case there would have been any less unreasonable treatment by the appellants of an employee other than the respondent against whom the same allegations of misconduct had been made."

In that case the relevant circumstances for the purposes of sections 1(1) and 3(4) were the allegations of sexual misconduct against the applicant which, the tribunal found, the council took into account in deciding to dismiss him. Therefore the tribunal had to consider whether the council treated the applicant less favourably than they would have treated other employees if the same or not materially different allegations had been made against them. In the same way in the present case the relevant circumstances for the purposes of articles 3(1)(a) and 7 were any circumstances which the tribunal found established and which they found that Superintendent Laird had taken into account in deciding to stop the appellant doing staff appraisals. The appellant had to prove that Superintendent Laird treated her less favourably than he treated or would have treated a male officer in the same or not materially different circumstances ("the same circumstances").

    138. The tribunal found that Superintendent Laird's decision to stop the appellant doing staff appraisals followed a meeting with representatives of the Police Federation called to discuss the disagreement over Constable Currie's appraisal and the appellant's comment about alcohol in that appraisal. At the meeting Constable Spratt pointed out that under the relevant Force Regulations staff appraisals of constables were normally to be done by a superintendent rather than by a chief inspector. Superintendent Laird considered that he had to agree to amend the practice since it was highly important to retain good relations with the Federation (Extended Reasons, para 3.8). "He acted [reacted?] without delay to the representations by the Federation…" (para 3.12) and stopped the appellant doing appraisals. The relevant circumstances must accordingly comprise the complaints and representations about the appellant's handling of staff appraisals, what was said at the meeting about them with the Federation and Superintendent Laird's discovery that, strictly speaking, appraisals of constables should have been done by superintendents rather than by chief inspectors. These circumstances are relevant because - despite his evidence to the contrary - the tribunal in effect found that Superintendent Laird took all of them into account when deciding to stop the appellant from doing staff appraisals. So in terms of article 3(1)(a) the tribunal had to decide whether in those circumstances Superintendent Laird treated the appellant less favourably than he treated or would have treated a male officer of similar rank in circumstances that were the same as those circumstances or not materially different from them.

    139. I turn now to the kinds of evidence that an applicant may lead. I agree with what Lord Scott of Foscote has said in this connexion. In some cases it will be easy for an applicant to identify male employees who were in fact treated more favourably in the same circumstances. So, for example, if two employees with similar disciplinary records are found drinking together at lunch time and the employer disciplines them by dismissing the woman but admonishing the man, then proving that the employer treated the woman less favourably than he treated a man in the same circumstances will be straightforward. Evidence of what happened to the man in question will prove the applicant's point. He is an "actual comparator". Often the position will not be so straightforward and the employer may argue that he treated the woman less favourably than the man because of material differences in the circumstances which he took into account in deciding what to do in each case. Once the evidence has been led, it is for the tribunal to examine the facts and decide whether the two cases really are comparable.

    140. Frequently, of course, a woman may claim that her employer discriminated against her in a situation where she cannot point to any actual case in which a male employee has been treated more favourably. What she says is that the employer treated her less favourably than he would have treated a male employee in the same circumstances. The words "would treat" in article 3(1)(a) specifically recognise that she can do this. In a contested claim before a tribunal the applicant has to prove how her employer would have treated a male employee in circumstances which, ex hypothesi, have not actually occurred. That male employee is often referred to as a "hypothetical comparator". In some cases the applicant's task may be relatively easy. For example, she may be able to point to an established policy or practice of the employer that involves treating women less favourably than men in virtually all circumstances. By proving the existence of the policy or practice the applicant may hope to satisfy the tribunal that, in the (unique) situation in which she found herself, her employer treated her less favourably than he would have treated a male employee if the same had happened to him. In many cases, however, the applicant leads more general evidence and invites the tribunal to find facts from which it can infer that her employer treated her less favourably than he would have treated a male employee in the same circumstances.

    141. The task facing an applicant in such cases may well be difficult. Indeed it was to try to obviate these difficulties that at one time employees ran the argument that it was sufficient if an applicant could satisfy the tribunal that her employer had treated her as no reasonable employer would have treated an employee. In Zafar v Glasgow City Council 1996 SC 502, 505I - 506C that approach was stamped out, even though it was recognised that suitable evidence might be difficult to come by in these cases. Some of the arguments advanced in favour of the appellant's interpretation of article 7 echo this discredited plea ad misericordiam. They too must be rejected.

    142. The potentially difficult task for the applicant would be made even more taxing if the Court of Appeal were correct in saying that only certain kinds of evidence can be taken into consideration in these cases. They referred with approval to a passage in the judgment of Carswell LCJ in Chief Constable of the Royal Ulster Constabulary v A [2000] NI 261, a case of religious discrimination, where he said:

    "To make out a case under section 16(2)(a) of the 1976 Act an applicant has to show that the respondent has treated him 'less fairly than he treats or would treat other persons'. In the absence of evidence of a regular way in which other persons in the same circumstances are treated, he has to prove that at least one other person in comparable circumstances has been treated differently, which may tend to show how others would have been treated if they and not the applicant had been concerned."

In my respectful opinion that approach is too restrictive and would place an insurmountable obstacle in the way of many good claims by excluding evidence that could be compelling. Suppose, for instance, that an employer created a new high-level management post and, when refusing to appoint the female applicant to that post, he said that he was doing so because, with a largely male workforce, he did not want a woman at that level of the management structure. The employer's very words would show that he was treating the applicant less favourably than he would have treated a similarly qualified man who applied for the high-level job. Therefore, even although this was the very first time that the appointment fell to be made, by proving what the employer said the applicant could establish that he had treated her less favourably than he would have treated a man, on the ground of her sex.

    143. In practice, an employee is unlikely to be able to point to any such clear utterance. Discrimination is rarely open and may not even be conscious. It will usually be proved only as a matter of inference: Nagarajan v London Regional Transport [2000] 1 AC 501, 511A -D, per Lord Nicholls of Birkenhead. The important point is that there are no restrictions on the types of evidence on which a tribunal can be asked to find the facts from which to draw the necessary inference. In Chief Constable of West Yorkshire v Vento [2001] IRLR 124 the Employment Appeal Tribunal discussed some of the kinds of evidence that are used and how they should be approached. In particular, Lindsay J pointed out, at p 125, para 7, that one permissible way of judging how an employer would have treated a male employee in comparable circumstances is to see how the employer treated male employees in cases which, while not identical, were also not wholly dissimilar. Despite the differences, the tribunal may be able to use that evidence as a sound basis for inferring how the employer would have treated a male employee in the same circumstances as the applicant. Of course, a tribunal cannot draw inferences from thin air, but it can draw them by using its good sense to evaluate the evidence, including the comparisons offered: [2001] IRLR 124, 126, para 12.

    144. I turn to the facts of the present case. As I have indicated already, the relevant circumstances for the purposes of articles 3(1)(a) and 7 included the complaints and representations about the appellant's handling of staff appraisals, Superintendent Laird's meeting with the Federation representatives and his discovery that, strictly speaking, appraisals of constables should have been done by superintendents rather than by chief inspectors. These were the matters which, the tribunal held, led him to stop the appellant doing appraisals. So in terms of article 3(1)(a) the tribunal had to decide whether by taking that action in those circumstances Superintendent Laird treated the appellant less favourably than he treated or would have treated a male officer of similar rank in the same circumstances - i e after similar complaints and representations and a similar meeting where the same point had been made about the correct procedure for doing appraisals.

    145. The tribunal regarded the two male chief inspectors in other regions as appropriate comparators for the purpose of article 3(1)(a) because they were in the traffic branch, held the same rank as the appellant and carried out similar responsibilities in their regions. The tribunal attached weight to the fact that those male officers continued to do appraisals whereas Superintendent Laird stopped the appellant from doing them. In other words the tribunal proceeded on the basis that the circumstances relating to those officers were the same as, or not materially different from, the relevant circumstances of the appellant's case. On that basis the tribunal reached the unanimous conclusion that the appellant had been unfavourably (sc less favourably) treated by Superintendent Laird in respect of the appraisals (para 3.12). In effect he treated her less favourably than the two male chief inspectors were treated. The tribunal thus purported to deal with the case on the basis of how the two chief inspectors were actually treated, not on the basis of how they would have been treated in hypothetical circumstances. The tribunal regarded the two male chief inspectors as actual comparators.

    146. The tribunal's decision is vitiated by two fundamental errors. First, it overlooked the fact that Superintendent Laird had no authority over the two male chief inspectors who were in different regions. So, if they continued to do assessments, this was not because of any decision which Superintendent Laird had taken to allow them to do so. He did nothing in relation to them - he did not "treat" them at all. For that reason, it was not open to the tribunal to find in terms of article 3(1)(a) that Superintendent Laird treated the appellant less favourably than he treated the two male chief inspectors. Secondly, in any event, the tribunal misunderstood the nature of the circumstances relating to the appellant which it had to consider under article 3(1)(a). It is, of course, correct that the two male chief inspectors worked in the traffic branch, held the same rank and had similar responsibilities. In those respects they were comparable. But no complaints or representations had been made about them. Their circumstances were therefore materially different from the circumstances which Superintendent Laird took into account - hence the relevant circumstances - in the case of the appellant. So, for that reason also, the fact that the other chief inspectors continued to do appraisals was not a basis for concluding that Superintendent Laird treated the appellant less favourably than a man for the purposes of article 3(1)(a). Because of these fundamental errors in interpreting and applying the article, the tribunal's conclusion cannot stand.

    147. Presumably, because of the way counsel for the appellant presented her case, the tribunal did not consider whether she had proved that Superintendent Laird treated her less favourably than he would have treated a man in the same or not materially different circumstances. Like Lord Scott of Foscote, however, I am satisfied that the tribunal's findings relating to the chief inspectors would not have entitled it to infer that Superintendent Laird would have treated a male chief inspector more favourably. There are, for instance, no findings whatever on how Superintendent Laird treated officers in other, not wholly dissimilar, circumstances. Such findings would, perhaps, have formed a basis from which the tribunal could have inferred how Superintendent Laird would have treated a male chief inspector in the same circumstances as the appellant. But the tribunal's actual findings would be of no use for that purpose.

    148. For these reasons, although she suffered a detriment by being stopped from doing appraisals, the appellant failed to prove that Superintendent Laird discriminated against her by treating her less favourably than he treated or would have treated a man in the same circumstances. I would accordingly dismiss the appeal.

 
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