Shamoon (Appellant) v Chief Constable of the Royal Ulster Constabulary (Respondent) (Northern Ireland)
101. Next, the tribunal, having concluded unanimously that the appellant had been treated unfavourably by Superintendent Laird in respect of the appraisals, addressed the all-important question of whether the treatment was because she was a woman. The relevant passage, 3.13 of the Decision, is set out in full in paragraph 27 of the opinion of my noble and learned friend Lord Hope of Craighead and I need not repeat it.
102. The tribunal's conclusion, expressed in the cited passage, was that Superintendent Laird, in deciding to withhold counselling officer duties from the appellant, had treated her "less favourably than he . would treat a man" (Article 3(1) of the 1976 Order). This conclusion imposed liability under the 1976 Order on the Chief Constable, Superintendent Laird's employer (see Article 42(1) of the Order). The Chief Constable appealed by way of case stated to the Court of Appeal in Northern Ireland. The questions that were posed by the case stated are set out in paragraph 18 of Lord Hope's opinion.
103. Detriment. The first issue dealt with by the Court of Appeal was the issue of detriment, an issue that had not been dealt with at all by the Industrial Tribunal. Presumably the tribunal had taken the view that it was obvious that Superintendent Laird's decision constituted detriment to the appellant for the purposes of Article 8(2)(b) of the 1976 Order. If the tribunal did take that view I am in agreement with them. The withholding from the appellant of counselling officer duties was liable to detract from the respect accorded to her by her colleagues and to deprive her of an opportunity to impress senior officers with her capabilities.
104. The Court of Appeal, however, came to the conclusion that Superintendent Laird's decision had not subjected the appellant to any detriment. They adopted a construction of "detriment" that required there to be "some physical or economic consequence as a result of discrimination". I am unable to agree with the Court of Appeal and am in general agreement with the views expressed by Lord Hope in paragraphs 31 to 37 of his opinion.
105. My only reservation is that the test of detriment as expressed by Brightman LJ in Ministry of Defence v Jeremiah  QB 87 at 104, cited by Lord Hoffmann in Chief Constable of the West Yorkshire Police v Khan  1 WLR 1947 at 1959-1960 (see paras 33 and 35 of Lord Hope's opinion), namely, that "a detriment exists if a reasonable worker would or might take the view that the [treatment] was in all the circumstances to his detriment", must be applied by considering the issue from the point of view of the victim. If the victim's opinion that the treatment was to his or her detriment is a reasonable one to hold, that ought, in my opinion, to suffice. In Khan the complainant, desiring to apply for a new job, wanted a reference to be given by his employers. His employers refused to give one. It was clear that if they had given one it would have been an unfavourable one. It might be said that a reasonable worker would not want an unfavourable reference. But the complainant wanted to be treated like all other employees and to be given a reference. The House concluded that this was a reasonable attitude for him to adopt and that the refusal to give him a reference constituted "detriment". He was being deprived of something that he reasonably wanted to have. And while an unjustified sense of grievance about an allegedly discriminatory decision cannot constitute "detriment", a justified and reasonable sense of grievance about the decision may well do so. On the facts of the present case I agree with Lord Hope that the appellant was entitled to a finding that she was subjected to a detriment within the meaning of Article 8(2)(b) of the 1976 Order.
106. Less favourable treatment and comparators. Article 3(1) of the 1976 Order declares that "a person discriminates against a woman . if . on the ground of her sex he treats her less favourably than he treats or would treat a man". And Article 7, headed "Basis of Comparison", provides that:
107. There has been, in my respectful opinion, some confusion about the part to be played by comparators in the reaching of a conclusion as to whether a case of Article 3(1) discrimination or for that matter a case of discrimination under section 1(1) of the Sex Discrimination Act 1975, or under section 1(1) of the Race Relations Act 1976, or under the comparable provision in any other anti-discrimination legislation has been made out. Comparators come into play in two distinct and separate respects.
108. First, the statutory definition of what constitutes discrimination involves a comparison: " . treats that other less favourably than he treats or would treat other persons". The comparison is between the treatment of the victim on the one hand and of a comparator on the other hand. The comparator may be actual ("treats") or may be hypothetical ("or would treat") but "must be such that the relevant circumstances in the one case are the same, or not materially different, in the other" (see Article 7). If there is any material difference between the circumstances of the victim and the circumstances of the comparator, the statutory definition is not being applied. It is possible that, in a particular case, an actual comparator capable of constituting the statutory comparator can be found. But in most cases a suitable actual comparator will not be available and a hypothetical comparator will have to constitute the statutory comparator. In Khan one of the questions was as to the circumstances that should be attributed to the statutory hypothetical comparator. It is important, in my opinion, to recognise that Article 7 is describing the attributes that the Article 3(1) comparator must possess.
109. But, secondly, comparators have a quite separate evidential role to play. Article 7 has nothing to do with this role. It is neither prescribing nor limiting the evidential comparators that may be adduced by either party. The victim who complains of discrimination must satisfy the fact finding tribunal that, on a balance of probabilities, he or she has suffered discrimination falling within the statutory definition. This may be done by placing before the tribunal evidential material from which an inference can be drawn that the victim was treated less favourably than he or she would have been treated if he or she had not been a member of the protected class. Comparators, which for this purpose are bound to be actual comparators, may of course constitute such evidential material. But they are no more than tools which may or may not justify an inference of discrimination on the relevant prohibited ground eg. sex. The usefulness of the tool will, in any particular case, depend upon the extent to which the circumstances relating to the comparator are the same as the circumstances relating to the victim. The more significant the difference or differences the less cogent will be the case for drawing the requisite inference. But the fact that a particular chosen comparator cannot, because of material differences, qualify as the statutory comparator, eg. under Article 7, by no means disqualifies it from an evidential role. It may, in conjunction with other material, justify the tribunal in drawing the inference that the victim was treated less favourably than she would have been treated if she had been the Article 7 comparator.
110. In summary, the comparator required for the purpose of the statutory definition of discrimination must be a comparator in the same position in all material respects as the victim save only that he, or she, is not a member of the protected class. But the comparators that can be of evidential value, sometimes determinative of the case, are not so circumscribed. Their evidential value will, however, be variable and will inevitably be weakened by material differences between the circumstances relating to them and the circumstances of the victim.
111. The Industrial Tribunal did not, in reaching its majority conclusion in favour of the appellant, expressly rely on comparators. There was a reference (in paragraph 3.13) to " . sufficient material from which [the tribunal] could reach the opinion that the applicant had been discriminated against on the grounds of her sex" but the material in question was not identified. It may be, and I would be prepared to assume, that the material included the evidence about the Chief Inspectors of the North Branch and the South Branch, both male, who had been carrying out the same counselling officer duties as the appellant and neither of whom had been deprived of those duties. Certainly the Court of Appeal made that assumption (p 10 of the judgment).
112. There were, however, two material differences between the circumstances relating to each of these Chief Inspectors and those relating to the appellant. First, no constable in either the South Branch or the North Branch had complained about the manner in which the Chief Inspector in question had carried out his counselling officer duties and, no complaint to the Federation having been made, the Federation did not raise with either of the Superintendents the question whether the involvement of Chief Inspectors in appraisals was consistent with paragraph 3.2 of the Staff Appraisal Scheme. Second, Superintendent Laird, the alleged discriminator, had no managerial responsibility or function in relation to the staff appraisal procedures followed in the South Branch and North Branch. He could not, even if he had wanted to, have deprived the Chief Inspectors of those Branches of their counselling officer duties.
113. These two important differences rule out the use of the two Chief Inspectors as Article 7 comparators. The critical question for Article 3(1) purposes is whether the appellant, a Chief Inspector about whom complaints had been made and whose role in staff appraisals had been challenged by the Federation, had been treated by Superintendent Laird less favourably than he would have treated a male Chief Inspector about whom similar complaints had been made and whose role in staff appraisals had been similarly challenged by the Federation. In the present case, as in most cases, the Article 7 comparator had to be a hypothetical comparator. In considering this critical question it is necessary to keep in mind that the alleged discriminator was Superintendent Laird, not the Chief Constable. The Chief Constable's liability is merely vicarious (Article 42(1)). The question is not how the Chief Constable would have treated the appellant but how the Superintendent would have treated her if she had been a man.
114. The question remains, however, whether the Chief Inspectors of the South Branch and the North Branch constituted comparators of evidential value justifying the inference drawn by the tribunal that Superintendent Laird's treatment of the appellant was attributable to her sex. That depends on the degree of materiality of the two differences to which I have referred. In my opinion, the differences deprive the two Chief Inspectors, as comparators, of any significant evidential value.
115. The fact that no complaint was made about either of the other two Chief Inspectors and that no criticism of their role in staff appraisals was directed by the Federation to their Superintendents makes it impossible to know how their Superintendents would have reacted if the position had been otherwise. Moreover, the fact that neither of these Superintendents took the action in relation to his Chief Inspector that Superintendent Laird took in relation to the appellant is no guide as to how Superintendent Laird would have reacted if there had been a male Chief Inspector, additional to the appellant, in the Urban Branch. How he would have reacted would have been illuminating but is unknowable. The fact that the Superintendents of the other Branches allowed their Chief Inspectors to continue to carry out counselling officer duties does not, to my mind, provide any guide as to what Superintendent Laird would have done if, having had his meeting with the Federation, he had had to deal not only with the appellant but also with a male Chief Inspector carrying out similar duties. An inference that Superintendent Laird's decision to deprive the appellant of her counselling officer duties was taken because of her sex is not assisted in the least by the fact that the other Superintendents did not deprive their male Chief Inspectors, about whom no complaint had been made, of their counselling officer duties.
116. In the absence of any evidentially valuable comparators, was there any other material that the Industrial Tribunal majority might have had in mind as constituting the "sufficient material" to which they referred? I would readily accept that it is possible for a case of unlawful discrimination to be made good without the assistance of any actual comparator. I respectfully agree with Lord Hope that the contrary opinion expressed by Carswell LCJ in Chief Constable of the Royal Ulster Constabulary v A  NI 261 cannot be accepted (paras 46 and 47 of Lord Hope's opinion). But in the absence of comparators of sufficient evidential value some other material must be identified that is capable of supporting the requisite inference of discrimination. Discriminatory comments made by the alleged discriminator about the victim might, in some cases, suffice. Unconvincing denials of a discriminatory intent given by the alleged discriminator, coupled with unconvincing assertions of other reasons for the allegedly discriminatory decision, might in some cases suffice. But there is nothing of that sort in the present case, or, at least, no reference to anything of that sort was made by the Industrial Tribunal.
117. The only matter relied on in the present case as justifying the inference of discrimination is the difference between the treatment of the appellant by Superintendent Laird and the treatment of the other two Chief Inspectors by their Superintendents. For the reasons I have tried to explain no inference of discrimination can fairly be derived from that difference.
118. Accordingly, I am in agreement with the Court of Appeal that no reasonable tribunal could have reached a conclusion in favour of the appellant.
119. There is a further point to be made. If the approach of the Industrial Tribunal was correct, it will have been demonstrated that Superintendent Laird, when faced with the request made by the Federation, needed to reject it in order to protect himself, and the RUC, from an allegation of sexual discrimination. He would have been precluded by the 1976 Order from preferring the avoidance of confrontation with the Federation to the avoidance of detriment to the appellant. In the case of a male Chief Inspector he could have preferred the former without fear of repercussions and have justified his choice on understandable pragmatic grounds. The 1975 Act and the other anti-discrimination legislation, including the 1976 Order in Northern Ireland, are designed to prevent discriminatory unfairness to the protected class in question. This legislation was, and is, highly important. It attempts to remedy various types of social injustice. But an implementation of the legislation that tends to require a more favourable treatment of the protected class than a member of the class could expect if he or she were not a member of that class turns anti-discrimination legislation on its head and brings it into disrepute. A finding of discrimination where no material exists to support the finding tends, in my opinion, to that result.
120. For these reasons, and for those expressed in the opinion of my noble and learned friend Lord Rodger of Earlsferry with whom I am in complete agreement, I would dismiss this appeal.
LORD RODGER OF EARLSFERRY
121. This appeal raises important issues as to the construction and application of provisions of the Sex Discrimination (Northern Ireland) Order 1976 ("the Order") which mirror those of the Sex Discrimination Act 1975 ("the 1975 Act"). I gratefully adopt the narrative of the facts and submissions that my noble and learned friend Lord Hope of Craighead has given.
122. Although many of the same issues arise in other fields to which the legislation applies, for the sake of simplicity in this opinion I look at the provisions only as they operate in the field of employment. In any such case where a woman raises an issue of sex discrimination a tribunal has two questions to decide, although the second question is sometimes for convenience broken down.
123. The first question is whether the employer has discriminated against the woman in any of the ways specified in article 8(1). In this case the specific question was whether Superintendent Laird had discriminated against the appellant by subjecting her to a detriment in terms of article 8(2)(b). On the basis of their interpretation of "detriment" in the context of that provision the Court of Appeal held that he had not. I agree, however, with Lord Hope of Craighead that, in the light of the subsequent decision of this House in Chief Constable of the West Yorkshire Police v Khan  UKHL 48;  1 WLR 1947, the Court of Appeal's interpretation cannot stand. I am also satisfied that when he stopped the appellant from carrying out staff appraisals Superintendent Laird subjected her to a detriment in terms of article 8(2)(b).
124. The second question for the tribunal is whether by so subjecting the woman to a detriment the employer "discriminated" against her in terms of article 8(2). In this case the question for the tribunal was whether by stopping the appellant from carrying out staff appraisals Superintendent Laird "discriminated" against her in terms of that article. As my noble and learned friend Lord Scott of Foscote points out, it is important to bear in mind that the issue for the tribunal was whether Superintendent Laird, as an individual, discriminated against the appellant. Any liability of the Chief Constable would arise vicariously by reason of article 42(1) of the Order.
125. The meaning of discrimination for purposes of article 8(2) is to be found in Part II of the Order. In this case the relevant provision is in article 3(1)(a):
For the moment therefore the second question for the tribunal can be provisionally formulated in this way: has the appellant proved that in the relevant circumstances on the ground of her sex Superintendent Laird treated her less favourably than he treated or would have treated a man? Although in the end the tribunal had to answer just this single question, it has been recognised that in certain cases it may be convenient, for the purpose of analysis, to split the question into two parts - less favourable treatment and the ground of sex. See, for instance, Zafar v Glasgow City Council  IRLR 36, 38, para 10 per Lord Browne-Wilkinson (dealing with section 1(1) of the Race Relations Act 1976). In practice the tribunal's view on the first issue will often go a considerable way towards answering the whole question since a finding of discrimination where there is a difference of sex will tend to point to the possibility of sex discrimination. Cf King v Great Britain China-Centre  IRLR 513, 518 per Neill LJ. While dividing the issues up in this way may be helpful in certain cases, I respectfully agree with Lord Nicholls of Birkenhead that there are other cases - and this may be one - where the issues are so intertwined that attempting to deal with them separately may hinder rather than help a tribunal to resolve them.
126. In this case the tribunal did in fact split up the question although it somewhat loosely identified the first part as involving a consideration of whether Superintendent Laird treated the appellant "unfavourably" (Extended Reasons, para 3.12). This is probably best treated as a slip of the pen. More accurately, of course, the first stage of the analysis required the tribunal to consider whether, by stopping her from doing appraisals, Superintendent Laird had treated the appellant "less favourably" than he treated or would have treated a man. That part of the exercise necessarily involves a comparison. The nature of the comparison is laid down, in not particularly elegant language, in article 7:
The same provision is to be found in section 5(3) of the 1975 Act.
127. By reason of article 7 the comparison under article 3(1) must be with a man whose relevant circumstances are not materially different from those of the female applicant. In this case therefore the second question for the tribunal can be reformulated, if somewhat clumsily, in this way: has the appellant proved that in the relevant circumstances on the ground of her sex Superintendent Laird treated her less favourably than he treated or would have treated a man in the same or not materially different circumstances? In rather an abstract form, that was the ultimate issue which the tribunal had to decide. The appellant had to lead evidence to satisfy the tribunal on it. I deal later with what form that evidence might take but must first consider what are "the relevant circumstances" and "the same or not materially different" circumstances that require to be taken into account when making this kind of comparison under articles 3(1)(a) and 7.
128. On the approach advocated by Ms McGrenera QC on behalf of the appellant the relevant circumstances are said not to include circumstances which are unique to the applicant. In particular they are said not to include the circumstances which the employer took into account when he decided to treat the applicant as he did. So, for instance, in this case the complaints and representations about the appellant's staff appraisals and the events at Superintendent Laird's meeting with the Police Federation must be ignored. These might be relevant when the tribunal reached the next stage of the analysis and was considering whether any difference in treatment was on the ground of the appellant's sex. But at this first stage the only relevant circumstances would be that the appellant was a chief inspector in the Urban Traffic branch of the Royal Ulster Constabulary and that she carried out staff appraisals. The tribunal therefore required to compare how Superintendent Laird treated the appellant and how he treated, or would have treated, a male officer of equivalent rank who carried out staff appraisals. Here, it is said, Superintendent Laird stopped the appellant from doing appraisals whereas there were two male chief inspectors in other regions who were allowed to continue doing them. The comparison should be between this treatment of the appellant and this treatment of those two male officers. The tribunal applied this approach (Extended Reasons, para 3.11 and Stated Case, para 6).
129. The obvious objection to this approach is that the exercise of comparing the two cases serves no useful purpose. If a tribunal or anyone else wants to see whether an employer discriminated against a female employee, there is no point in looking at what he did to her out of its context and comparing it with what he did to a man, also out of context. Logically, the appellant's approach would mean that a woman who was sacked for trying to burn down her employer's factory would be treated "less favourably" in terms of article 3(1)(a) than a male fellow employee in the same department who was given a bonus for putting the fire out. That can hardly be right: the similarities or differences in the two contexts are precisely what matters in deciding whether the employer discriminated against the woman by treating her less favourably than the man.
130. Despite this, counsel for the appellant claimed to find support for her approach in the speech of Lord Nicholls of Birkenhead in Chief Constable of the West Yorkshire Police v Khan  1 WLR 1947, 1953 - 1954, paras 24 - 28, a case of victimisation under section 2(1) of the Race Relations Act 1976, the equivalent of article 6 of the Order. I have studied his speech in the present case which satisfies me that the decision of the House in Khan's case does not in fact support her argument and that, protected act aside, the hypothetical comparator in a victimisation case should be in the same position as the complainant. This accords with what Lord Scott of Foscote said:  1 WLR 1947, 1963, para 73. Nevertheless, when trying to ascertain the meaning of "the relevant circumstances" in article 7, I prefer to concentrate on the terms of articles 3(1)(a) and 7.
131. Broadly speaking, the alternative to the appellant's approach to the interpretation of "the relevant circumstances" is to say that, in terms of articles 3(1)(a) and 7, the comparison should proceed on the basis of all the circumstances that are relevant to the way that the employer treated the female employee who complains of discrimination. In this case, however, the Court of Appeal applied a particular version of this approach which Carswell LCJ explained in this way:
The Court of Appeal considered that in making the necessary comparison under article 3(1) the tribunal should have regard to the circumstances upon which a reasonable person would put some weight in determining how to treat another. On behalf of the Chief Constable Mr Morgan QC supported that interpretation.
132. I would respectfully reject the Court of Appeal's interpretation of Article 7, even though on the facts of this case I would come to very much the same conclusion as to what the relevant circumstances actually were. Their interpretation must be wrong because it re-introduces into the law of discrimination the figure of the reasonable employer whom the House was at pains to expel in Zafar v Glasgow City Council  IRLR 36, 38, para 11. That case involved a claim of direct discrimination under section 1(1) of the Race Relations Act 1976. Section 3(4), which corresponds to article 7 of the Order in sex discrimination cases, applied. Lord Browne-Wilkinson said this:
Lord Browne-Wilkinson went on to say that he could not improve on the reasoning of Lord Morison giving the opinion of the Second Division of the Court of Session, 1996 SC 502, 505G - H:
It follows that, for the purposes of article 3(1)(a) of the Order, circumstances may be relevant even if no reasonable employer would ever have attached any weight to them in considering how to treat his employees.