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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] UKHL 11 (27 February 2003) URL: http://www.bailii.org/uk/cases/UKHL/2003/11.html Cite as: [2003] UKHL 11, [2003] ICR 337, [2003] NI 174, [2003] IRLR 285, [2003] 2 All ER 26 |
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Shamoon (Appellant) v Chief Constable of the Royal Ulster Constabulary (Respondent) (Northern Ireland)
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OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT IN THE CAUSE Shamoon (Appellant) v. Chief Constable of the Royal Ulster Constabulary (Respondent) (Northern Ireland) ON THURSDAY 27 FEBRUARY 2003 The Appellate Committee comprised: Lord Nicholls of Birkenhead Lord Hope of Craighead Lord Hutton Lord Scott of Foscote Lord Rodger of Earlsferry HOUSE OF LORDSOPINIONS OF THE LORDS OF APPEAL FOR JUDGMENTIN THE CAUSEShamoon (Appellant) v. Chief Constable of the Royal Ulster Constabulary (Respondent) (Northern Ireland) [2003] UKHL 11LORD NICHOLLS OF BIRKENHEAD My Lords, 1. This is a sex discrimination case. The appeal raises an issue concerning identification of the appropriate comparator. It is not the first time this type of issue has come before the courts in discrimination cases. So it may be helpful to go back to first principles. 2. In this country discrimination law is statute-based. Statute law prohibits discrimination on specified grounds, such as sex, in specified circumstances, such as the field of employment. Initially the proscribed grounds were sex, marital status and race. Disability and gender reassignment have since been added to the list. Additionally, in Northern Ireland the proscribed grounds include religious belief and political opinion. Each statutory provision specifies with some particularity the circumstances in which discrimination, on the relevant proscribed ground, is unlawful. For instance, under section 6(2) of the Sex Discrimination Act 1975 it is unlawful for an employer to discriminate against an employee by dismissing her or him. 3. The definition of discrimination differs in some respects from statute to statute. But the essence of what is known colloquially as direct discrimination is the same in all the statutes. It consists of treating one person less favourably than another on the proscribed ground. Thus, to take the provisions of the Sex Discrimination Act 1975 as illustrative, section 1(1) of that Act provides:
(a) on the ground of her sex he treats her less favourably than he treats or would treat a man " The 'circumstances relevant for the purposes of any provision of this Act' are the circumstances in which discrimination is prohibited by the Act: see R v Immigration Appeal Tribunal, Ex parte Kassam [1980] 1 WLR 1037, 1041, per Stephenson LJ, and Chief Constable of the West Yorkshire Police v Khan [2001] 1 WLR 1947, 1953. 4. Thus, where the act complained of consists of dismissal from employment, the statutory definition calls for a comparison between the way the employer treated the claimant woman (dismissal) and the way he treated or would have treated a man. It stands to reason that in making this comparison, with a view to deciding whether a woman who was dismissed received less favourable treatment than a man, it is necessary to compare like with like. The situations being compared must be such that, gender apart, the situation of the man and the woman are in all material respects the same. This self-evident proposition is spelled out in section 5(3) of the Sex Discrimination Act: see Dillon LJ in Bain v Bowles [1991] IRLR 356, 357. As originally enacted (the later amendments are not relevant for present purposes), section 5(3) provides:
This provision applies regardless of whether the comparator is an actual person or a hypothetical person. It is equally applicable to both types of comparator. 5. Each of the statutory provisions also includes victimisation within the definition of discrimination. This is an essential ancillary safeguard. Persons who exercise their statutory rights are not to be penalised for doing so. Employers and others who retaliate in this way are guilty of discrimination. The victimisation provisions adopt substantially the same structure as the direct discrimination provisions, save only that the proscribed ground is different. In cases of direct discrimination, the proscribed ground is sex, or whatever. In cases of victimisation the proscribed ground is that the claimant committed one of the 'protected acts'; for instance, that the claimant had brought proceedings under the Act. Subject to this necessary adjustment, the definition of victimisation calls for a similar 'less favourable treatment' comparison. In the case of direct sex discrimination the comparison is between the treatment afforded to the claimant woman and that afforded to a man. In the case of victimisation the comparison is between the treatment afforded to the claimant and the treatment afforded to a person who has not committed a protected act. Section 4 of the Sex Discrimination Act provides:
6. In the Sex Discrimination Act there is one linguistic difference between section 1(1), defining direct discrimination, and section 4, defining discrimination by way of victimisation. Section 5(3), containing the 'like with like' direction, is expressed to apply to sections 1(1) (sex discrimination) and 3(1) (marital status discrimination). Section 5(3) makes no mention of section 4(1) (victimisation). I do not think this omission is significant. I can see no reason in principle why the two comparison exercises should differ in their nature. Rather, although the language may be maladroit, the phrase 'in those circumstances' in section 4(1) seems to be intended to serve the same purpose in relation to victimisation as section 5(3) serves in relation to direct discrimination under section 1(1). Indeed, this is made explicit in the updated language of the Disability Discrimination Act 1995. In the definition of victimisation in that Act, section 55(1) calls for a comparison between the treatment afforded to the claimant and the treatment afforded to 'other persons whose circumstances are the same' as those of the claimant. 7. With this introduction I turn to consider the application of these provisions in practice. In deciding a discrimination claim one of the matters employment tribunals have to consider is whether the statutory definition of discrimination has been satisfied. When the claim is based on direct discrimination or victimisation, in practice tribunals in their decisions normally consider, first, whether the claimant received less favourable treatment than the appropriate comparator (the 'less favourable treatment' issue) and then, secondly, whether the less favourable treatment was on the relevant proscribed ground (the 'reason why' issue). Tribunals proceed to consider the reason why issue only if the less favourable treatment issue is resolved in favour of the claimant. Thus the less favourable treatment issue is treated as a threshold which the claimant must cross before the tribunal is called upon to decide why the claimant was afforded the treatment of which she is complaining. 8. No doubt there are cases where it is convenient and helpful to adopt this two step approach to what is essentially a single question: did the claimant, on the proscribed ground, receive less favourable treatment than others? But, especially where the identity of the relevant comparator is a matter of dispute, this sequential analysis may give rise to needless problems. Sometimes the less favourable treatment issue cannot be resolved without, at the same time, deciding the reason why issue. The two issues are intertwined. 9. The present case is a good example. The relevant provisions in the Sex Discrimination (Northern Ireland) Order 1976 are in all material respects the same as those in the Sex Discrimination Act 1975 which, for ease of discussion, I have so far referred to. Chief Inspector Shamoon claimed she was treated less favourably than two male chief inspectors. Unlike her, they retained their counselling responsibilities. Is this comparing like with like? Prima facie it is not. She had been the subject of complaints and of representations by Police Federation representatives, the male chief inspectors had not. This might be the reason why she was treated as she was. This might explain why she was relieved of her responsibilities and they were not. But whether this factual difference between their positions was in truth a material difference is an issue which cannot be resolved without determining why she was treated as she was. It might be that the reason why she was relieved of her counselling responsibilities had nothing to do with the complaints and representations. If that were so, then a comparison between her and the two male chief inspectors may well be comparing like with like, because in that event the difference between her and her two male colleagues would be an immaterial difference. 10. I must take this a step further. As I have said, prima facie the comparison with the two male chief inspectors is not apt. So be it. Let it be assumed that, this being so, the most sensible course in practice is to proceed on the footing that the appropriate comparator is a hypothetical comparator: a male chief inspector regarding whose conduct similar complaints and representations had been made. On this footing the less favourable treatment issue is this: was Chief Inspector Shamoon treated less favourably than such a male chief inspector would have been treated? But, here also, the question is incapable of being answered without deciding why Chief Inspector Shamoon was treated as she was. It is impossible to decide whether Chief Inspector Shamoon was treated less favourably than a hypothetical male chief inspector without identifying the ground on which she was treated as she was. Was it grounds of sex? If yes, then she was treated less favourably than a male chief inspector in her position would have been treated. If not, not. Thus, on this footing also, the less favourable treatment issue is incapable of being decided without deciding the reason why issue. And the decision on the reason why issue will also provide the answer to the less favourable treatment issue. 11. This analysis seems to me to point to the conclusion that employment tribunals may sometimes be able to avoid arid and confusing disputes about the identification of the appropriate comparator by concentrating primarily on why the claimant was treated as she was. Was it on the proscribed ground which is the foundation of the application? That will call for an examination of all the facts of the case. Or was it for some other reason? If the latter, the application fails. If the former, there will be usually be no difficulty in deciding whether the treatment, afforded to the claimant on the proscribed ground, was less favourable than was or would have been afforded to others. 12. The most convenient and appropriate way to tackle the issues arising on any discrimination application must always depend upon the nature of the issues and all the circumstances of the case. There will be cases where it is convenient to decide the less favourable treatment issue first. But, for the reason set out above, when formulating their decisions employment tribunals may find it helpful to consider whether they should postpone determining the less favourable treatment issue until after they have decided why the treatment was afforded to the claimant. Adopting this course would have simplified the issues, and assisted in their resolution, in the present case. 13. The views expressed above accord with the decision of your Lordships' House in the victimisation case of Chief Constable of the West Yorkshire Police v Khan [2001] 1 WLR 1947. The observations made by myself and others in that case regarding comparators have to be read in the context of the particular issue then before the House. The claimant, Sergeant Khan, was looking for new employment with another employer. He had unsuccessfully sought a reference from his existing employer, the Chief Constable of West Yorkshire. He claimed that his request had been refused because he had started proceedings in an industrial tribunal alleging racial discrimination. The Chief Constable submitted that in deciding the less favourable treatment issue Mr Khan's treatment was to be compared with the treatment which would have been afforded to a hypothetical police officer having two characteristics: first, that he had not committed a protected act and, secondly, that he had brought proceedings against the Chief Constable on some other ground, such as libel or wrongful dismissal. The House rejected the second half of this submission. The statute calls for a simple comparison between the treatment given to Mr Khan and the treatment which would have been given to a police officer who had not done a protected act. Protected act aside, the hypothetical comparator should be in the same position as Mr Khan, not in an admittedly different but allegedly comparable position. The present case 14. The majority of the industrial tribunal expressed themselves as satisfied that Chief Inspector Shamoon 'had been treated differently because she was a woman'. With all respect to the tribunal, I have to say that the reasoning underlying this conclusion is far from clear. Superintendent Laird acted in response to representations made by the Police Federation. The Federation representatives did not make similar representations in respect of male chief inspectors in other traffic regions. The tribunal considered it was not required to decide whether the Federation representatives 'had been guilty of discrimination' against Chief Inspector Shamoon. But if the Federation representatives were not discriminating against Chief Inspector Shamoon on the ground of her sex, it is far from clear why Superintendent Laird, in response to the Federation representatives, should nevertheless have acted on the grounds of sex. This is possible, but some further explanation was called for in this case, not least because the tribunal's prior consideration of the less favourable treatment issue is opaque. 15. Insufficiency of reasons ordinarily leads to the case being remitted for a re-hearing, although neither party made such a request in this case. Such a direction is not appropriate if there was no evidence on which a properly directed tribunal could have upheld the claimant's application. Whether there was such evidence in this case is an issue on which I have entertained more doubt than your Lordships. In reaching its overall conclusion the tribunal set out some criticisms of Superintendent Laird's evidence. There was no urgent need to change the practice, and the Force regulations were being altered in less than three months' time. I am inclined to think that a well reasoned decision could not have been upset as perverse. However, since all your Lordships consider otherwise I would not dissent on this point. In agreement, therefore, with all your Lordships I too would dismiss this appeal. LORD HOPE OF CRAIGHEAD My Lords, 16. This is an appeal from a decision of the Court of Appeal in Northern Ireland (Carswell LCJ and Nicholson and McCollum LJJ) which was delivered on 18 May 2001 allowing an appeal by way of case stated against the decision of an industrial tribunal that the appellant, Chief Inspector Joan Cartwright Shamoon, had been discriminated against on the grounds of her sex. 17. The appellant had lodged a complaint with an industrial tribunal for Northern Ireland on 9 December 1997 alleging that she had been discriminated against on the ground of her sex contrary to article 3 of the Sex Discrimination (Northern Ireland) Order 1976 by her employer, the Chief Constable of the Royal Ulster Constabulary. In April 1998 she lodged three further applications in which she alleged that she had been subjected to unlawful discrimination and victimisation in the course of her employment. After a hearing which lasted for twenty four days and took place on various dates between 18 October 1999 and 30 March 2000, the tribunal dismissed the three complaints which were lodged in April 1998. But the first complaint was upheld. A majority of the tribunal were of the opinion that there was sufficient material in the evidence from which it could reach the opinion that she had been discriminated against on the grounds of her sex. 18. The respondent expressed dissatisfaction with the decision of the tribunal and requested it to state a case for the opinion of the Court of Appeal on the following questions of law:
The facts
19. The appellant had been a member of the Royal Ulster Constabulary ("the RUC") for twenty two years prior to the events which gave rise to the complaint. Since September 1995 she had held the rank of chief inspector. She was employed in the Traffic Branch of the RUC. The branch was divided into three divisions - North, South and Urban Traffic. The appellant was deputy head of Urban Traffic. Her superior officer was the Superintendent who was in charge of that division. The appellant had worked as deputy to three superintendents before Superintendent Laird became the head of Urban Traffic in February 1997. 20. The RUC operated a Staff Appraisal Scheme. Clause 3.3 of the scheme provided that all ranks from constables who had completed a year out of probation to superintendents who had been confirmed in rank or appointment were to be appraised. There were two separate stages in this exercise. The first was the preparation of an annual report compiled by the officer's supervisor who was the assessing officer. The second was an interview by a designated senior officer who was the counselling officer. Clause 3.2 of the scheme provided that that the reports would normally be completed by a superintendent as the counselling officer. But by 1997 it had become the established custom and practice, and was endemic within the Force generally, that chief inspectors did the counselling of constables. As the appellant held the rank of chief inspector, it was the practice for her to carry out counselling in respect of all the staff appraisals of constables in Urban Traffic. 21. In April 1997 Constable Lowens made a complaint to Superintendent Laird about the manner in which the appellant had conducted the appraisal in his case. His complaint was upheld by Superintendent Laird. In September 1997 Constable Currie expressed dissatisfaction about comments which the appellant made in her appraisal about him. After discussion with Superintendent Laird the appellant agreed to delete some words from her report to which Constable Currie had taken exception. But the Constable took his complaint to the Police Federation. The Federation's representatives then asked for a meeting with Superintendent Laird. On 6 October 1997 a long meeting took place between Superintendent Laird and three representatives of the Federation, who were one each from the three ranks of constable, sergeant and inspector. During this meeting the procedures concerning staff appraisals were discussed. Superintendent Laird's evidence to the tribunal was that Constable Currie's appraisal was not discussed at this meeting, although he admitted that there were allusions to recent problems. He denied that the discussion referred directly to the appellant. But the tribunal found that it was probable that her handling of Constable Currie's appraisal was specifically discussed, as this was the background against which the meeting had been sought. 22. In the course of this meeting Superintendent Laird assured the representatives of the Federation that he would not act contrary to policy or procedures in the conduct of the appraisals. The Federation's representatives then brought the terms of the Staff Appraisal Scheme to his attention, whereupon he accepted that he should follow the letter of the scheme. He promised that henceforth he would do the appraisals, although he said that they would be carried out by the appellant in his absence. It was however already common knowledge that the policy relating to appraisals was to change in December 1997, with the result that from and after that date they were to be undertaken by chief inspectors. On 10 October 1997 the appellant was approached by a civil servant regarding completing staff appraisals. She spoke to Superintendent Laird and suggested that as he was off on the Monday and Tuesday she could do them. But he said that he had given an undertaking to the Federation and arranged to have the appraisals done when he came back. 23. When Superintendent Laird informed the appellant of the outcome of his meeting with the Federation she immediately expressed her dissatisfaction and annoyance over what she regarded as his failure to stand up to the Federation and resist their demands. She told him that she wished to invoke the grievance procedure, as her colleagues of equal rank in the North and South divisions of the Traffic Branch were still doing the appraisals. She told him that she felt victimised, discriminated against and astounded by what had happened. Superintendent Laird's response to the fact that other chief inspectors were doing appraisals was that they were in other divisions and he was only concerned about what happened in Urban Traffic. In the event the appellant did not formally invoke the grievance procedure. What she did instead was to lodge an application with the industrial tribunal complaining that she had been unlawfully discriminated against on the ground of her sex. 24. Part II of the Sex Discrimination (Northern Ireland) Order 1976 describes the discrimination to which the Order applies. Article 3(1), which is headed "Sex discrimination against women", provides:
Article 7, which is headed "Basis of comparison", provides:
25. Part III of the 1976 Order deals with discrimination in the employment field. Article 8(2) provides:
The tribunal's decision
26. The appellant asked the tribunal to regard the other two chief inspectors in the Traffic Branch as comparators for the purpose of determining whether she had been treated less favourably than a man was or would have been treated. For the respondent it was submitted that neither of them were appropriate comparators. But the tribunal did not accept this submission, as the male officers were of similar rank and were carrying out similar responsibilities in their divisions to those of the appellant and no evidence had been provided that their work was materially different. The tribunal concluded unanimously that the appellant had been unfavourably treated by Superintendent Laird in respect of the appraisals. The question whether this had subjected her to a detriment within the meaning of article 8(2)(b) was not raised at the hearing either by way of evidence or of cross-examination, nor were any submissions directed to it by counsel for either party. The result was that the tribunal did not deal expressly in its decision with the question of detriment. But it appears to have proceeded on the assumption that the appellant had been subjected to a detriment. In paragraph 10 of the case stated it is recorded that the tribunal concluded unanimously that the appellant had been less favourably treated when Superintendent Laird "removed" from her the right to continue to do appraisals on constables. 27. In paragraph 3.13 of its decision the Tribunal dealt with the remaining issue in the case, which was whether what they described as "the treatment meted out" to the appellant was because she was a woman. The facts which it regarded as relevant to this issue, together with its conclusions, are set out in this paragraph in these terms:
The judgment of the Court of Appeal
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28. The Court of Appeal dealt first with the issue of detriment. As to what the word "detriment" means in the context of article 8(2)(b) of the 1976 Order, Carswell LCJ approved of the construction of this word which was adopted by the Employment Appeal Tribunal in Lord Chancellor v Coker and Osamor [2001] IRLR 116. It held that it was ejusdem generis with "dismissing" in the same paragraph of the article, so that there had to be some physical or economic consequence as a result of discrimination which was material and substantial to constitute a detriment. The Lord Chief Justice said that this was in accord with the decision of the Court of Appeal in Barclays Bank plc v Kapur and others (No 2) [1995] IRLR 87 that an unjustified sense of grievance cannot amount to a detriment. He then said that the tribunal was in error in failing to consider whether the appellant had been subjected to a detriment, and that there was nothing in the evidence which could suffice to found a conclusion that she had suffered a detriment within the meaning of the article. As he put it,
He said that, on the construction of the word which it considered to be correct, the court was of opinion that no tribunal properly applying the law could conclude that the appellant had suffered a detriment and that this was sufficient to determine the appeal in the respondent's favour. 29. The court went on however to deal with the issues of less favourable treatment and treatment on grounds of sex. As to less favourable treatment, Carswell LCJ applied the criterion which had been laid down by the Court of Appeal in Chief Constable of the RUC v A [2000] NI 261, 271 for the purposes of unlawful discrimination under section 16(2) of the Fair Employment (Northern Ireland) Act 1976, which was to regard as relevant those circumstances on which a reasonable person would place some weight in determining how to treat another. He said that there were circumstances in the appellant's case that did not apply to the other chief inspectors. Complaints had been made against her about her performance of the appraisal of constables, and representations had been made by the Police Federation about that. In the court's view these were circumstances which no reasonable person could ignore or omit in comparing the appellant with the other chief inspectors. He held that 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. 30. Carswell LCJ then dealt with the third issue. This was whether the appellant's treatment, if it was different from that of the other officers, was because she was a woman. Adopting the approach set out by Neill LJ in King v Great Britain-China Centre [1992] ICR 516, 528-529 and approved by Lord Browne-Wilkinson in Zafar v Glasgow City Council [1998] IRLR 36, 38-39 and on the hypothesis that the appellant had been treated differently from male officers, he said that the tribunal would have been entitled to consider the possibility of discrimination on the ground of sex and look to the employer for an explanation. He said that that explanation was furnished in the present case by the fact that complaints were made about the appellant's discharge of her duties and the Police Federation made representations about her, and that there was no evidence to be found either in the case stated or in the tribunal's decision which would furnish a basis for a finding that this was on the ground of her sex. On this ground too the Court of Appeal held that the tribunal's decision had to be reversed. Detriment
31. I deal with this point first, as it was on the ground that no tribunal could properly hold that a detriment had been established in this case that the Court of Appeal decided to reverse the tribunal's decision and to dismiss the appellant's complaint. Mr Morgan QC for the respondent very properly conceded that the court's decision on this point could not stand, in the light of the views which had been expressed subsequently as to the meaning of this word in your Lordships' House in Chief Constable of the West Yorkshire Police v Khan [2001] UKHL 48; [2001] 1 WLR 1947. 32. Judgment in that case was delivered on 11 October 2001. It arose out of a complaint of victimisation by a police officer contrary to section 2(1)(a) of the Race Relations Act 1976 on the ground that he had been discriminated against because his employer had refused to provide him with a reference. Section 4(2) of that Act, which deals with discrimination in the field of employment, provides:
The wording of paragraphs (b) and (c) of that subsection is the same as that in paragraphs (a) and (b) of article 8(2) of the 1976 Order, apart from the words used to indicate the gender of the person discriminated against on the ground of sex. It is plain that the word "detriment" has the same meaning in both contexts. 33. At p 1951A-B, para 14 in Khan's case Lord Nicholls of Birkenhead said
Lord Hoffmann also dealt with the question whether, assuming there was discrimination under section 2(1) of the 1976 Act, Mr Khan was subjected to "detriment" within the meaning of section 4(2)(c). He pointed out, at p 1959G-1960A, that being subjected to detriment (or being treated in one of the other ways mentioned in section 4(2)) is an element of the statutory cause of action additional to being treated "less favourably" which forms part of the definition of discrimination:
Lord Mackay of Clashfern also noted, at p 1956F, para 37 that the word "detriment" has been widely defined. He referred to De Souza v Automobile Association [1986] ICR 514. Bingham LJ's observation in Barclays Bank plc v Kapur [1989] IRLR 387, para 54, that the phrase "subjecting him to any other detriment" in section 4(2)(c) of the Race Relations Act 1976 was to be given its broad, ordinary meaning is consistent with this approach. The decisions in De Souza v Automobile Association and Barclays Bank v Kapur predate the decision of the Court of Appeal in this case, but it appears that its attention was not drawn to these authorities. 34. The statutory cause of action which the appellant has invoked in this case is discrimination in the field of employment. So the first requirement, if the disadvantage is to qualify as a "detriment" within the meaning of article 8(2)(b), is that it has arisen in that field. The various acts and omissions mentioned in article 8(2)(a) are all of that character and so are the words "by dismissing her" in section 8(2)(b). The word "detriment" draws this limitation on its broad and ordinary meaning from its context and from the other words with which it is associated. Res noscitur a sociis. As May LJ put it in De Souza v Automobile Association [1986] ICR 514, 522G, the court or tribunal must find that by reason of the act or acts complained of a reasonable worker would or might take the view that he had thereby been disadvantaged in the circumstances in which he had thereafter to work. 35. But once this requirement is satisfied, the only other limitation that can be read into the word is that indicated by Lord Brightman. As he put it in Ministry of Defence v Jeremiah [1980] QB 87, 104B, one must take all the circumstances into account. This is a test of materiality. Is the treatment of such a kind that a reasonable worker would or might take the view that in all the circumstances it was to his detriment? An unjustified sense of grievance cannot amount to "detriment": Barclays Bank plc v Kapur and others (No 2) [1995] IRLR 87. But, contrary to the view that was expressed in Lord Chancellor v Coker and Osamor [2001] IRLR 116 on which the Court of Appeal relied, it is not necessary to demonstrate some physical or economic consequence. As Lord Hoffmann pointed out in Khan's case, at p 1959, para 52, the employment tribunal has jurisdiction to award compensation for injury to feelings whether or not compensation is to be awarded under any other head: Race Relations Act 1976, section 57(4); 1976 Order, article 66(4). Compensation for an injury to her feelings was the relief which the appellant was seeking in this case when she lodged her claim with the tribunal. Her complaint was that her role and position had been substantially undermined and that it was becoming increasingly marginalized. 36. The question then is whether there was a basis in the evidence which was before the tribunal for a finding that the treatment of which the appellant complained was to her detriment or, to put it more accurately as the tribunal did not make any finding on this point, whether a finding that the appellant had been subjected to a detriment could reasonably have been withheld. 37. It is clear that the treatment of which the appellant complains was in the field of her employment. The practice by which she did the appraisals of constables as part of her job in the Urban Traffic Branch had been terminated. As for the question whether a reasonable person in her position might regard this as a detriment, the background is provided by the fact that not only was it the practice for the appraisals to be done by the chief inspectors but this was, as the tribunal put it, endemic in the Force. There was evidence that the appellant had carried out as many as thirty five appraisals since she was promoted to the rank of chief inspector. Once it was known, as it was bound to be, that she had had this part of her normal duties taken away from her following a complaint to the Police Federation, the effect was likely to be to reduce her standing among her colleagues. A reasonable employee in her position might well feel that she was being demeaned in the eyes of those over whom she was in a position of authority. The tribunal did not make an express finding to that effect, but there was material in the evidence from which this conclusion could be reasonably be drawn. The respondent did not lead any evidence to the contrary, so he is in no position to resist the drawing of these inferences from the evidence. In my opinion the appellant was entitled to a finding that she was subjected to a detriment within the meaning of article 8(2)(b). Less favourable treatment 38. The background to this part of the case is provided by article 3(1)(a) of the 1976 Order, which applies where in any circumstances relevant for the purposes of any provision of the Order a person treats a woman on the ground of her sex "less favourably" than he treats or would treat a man, and by article 7, which provides that 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. 39. The obvious questions which these provisions raise are: with whom should the comparison be made, and which circumstances are to be considered as relevant: see Daniel Peyton, Sex and Race Discrimination, para 3.2.5. But these issues are by no means straightforward. As Sandra Fredman, Discrimination Law, pp 96-99, has explained, the need for a comparator has been one of the most problematic and limiting aspects of direct discrimination as defined in the legislation about discrimination on grounds of sex and race. The requirement is less harsh than in the legislation about equal pay, as the provisions about discrimination on grounds of sex and race permit a "hypothetical" comparison, based - in a sex case, for example - on the question how the woman "would" be treated if it is not possible to find an actual comparator. Nevertheless the choice of comparator requires that a judgment must be made as to which of the differences between any two individuals are relevant and which are irrelevant. The choice of characteristics may itself be determinative of the outcome: see Advocate General v MacDonald 2001 SC 1 and Pearce v Governing Body of Mayfield School [2001] EWCA Civ 1347; [2002] ICR 198. This suggests that care must be taken not to approach this issue in a way that will defeat the purpose of the legislation, which is to eliminate discrimination against women on the ground of their sex in all the areas with which it deals. 40. Ms McGrenera QC for the appellant submitted that the correct approach in this case was that described by Lord Nicholls of Birkenhead in Chief Constable of the West Yorkshire Police v Khan [2001] 1 WLR 1947, 1953D-1954B, paras 25-27. The approach which Lord Nicholls favoured was that which had been adopted in Aziz v Trinity Street Taxis Ltd [1989] QB 463, 480B-483F, in which the judgment of the court was delivered by Slade LJ. Those were victimisation cases. They were not concerned with the issue of direct discrimination. As Lord Nicholls explained at p 1951C-D, para 16, the primary object of the victimisation provisions is to ensure that persons are not penalised or prejudiced because they have taken steps to exercise their rights under the legislation or are intending to do so. Article 4 of the Order, which corresponds to section 2(1) of the Race Relations Act 1976 with which those cases were concerned, defines discrimination by way of victimisation. This arises where a person discriminates against another person in any circumstances relevant for the purposes of any provision of the Order "if he treats the person victimised less favourably that in those circumstances he treats or would treat other persons, and does so by reason that the person victimised has" done or intends to do one or other of a number of things, commonly referred to as "protected acts". Lord Nicholls said, at p 1954A, para 27, that the statute was to be regarded as calling for a simple comparison between the treatment afforded to the complainant who has done a protected act and the treatment which was or would be afforded to other employees who have not done the protected act. On this approach the reasons for the difference in treatment are not to be taken into account at this stage. The stage at which they are brought into account is at the stage when the tribunal is considering why the employer afforded less favourable treatment to the employee. 41. In Kirby v Manpower Services Commission [1980] 1 WLR 725, where a clerk who had been moved to another job after giving away confidential information complained of victimisation under section 2 of the Race Relations Act 1976, Slynn J delivering the judgment of the Employment Appeal Tribunal said at p 733E that the right question was whether people who gave away information which was received in confidence would be treated by the employer on broadly the same basis. In Aziz v Trinity Street Taxis Ltd [1989] QB 463 Slade LJ said that this was not the right test for resolving the question whether the complainant had been treated less favourably. The complainant in that case had been deprived of his membership of an organisation of taxi drivers, which was an organisation of workers within the meaning of section 11(1) of the Race Relations Act 1976. His case was that this was an act of victimisation, contrary to sections 2 and 11(3)(b) of the Act and his argument, which Slade LJ accepted, was that in the context of that case the "relevant circumstances" referred simply to the complainant's membership of the organisation. As he explained at p 482G-H, the relevant circumstances are assumed to subsist at the time when the treatment complained of occurs. So the fact that the complainant was expelled from the organisation, which was the treatment complained of, was in itself not a relevant circumstance. But at p 482H-483F Slade LJ also excluded the reasons which the organisation gave for the expulsion. He said that this was something to be considered at the next stage, which is directed to what he described as the issue of causation. The question at the initial stage was simply whether the organisation had treated the complainant less favourably than it treated or would have treated other persons by expelling him from membership. The only circumstance which was relevant to the issue whether he was treated less favourably for the purposes of sections 2 and 11(3)(b) of the Act was the fact that he was a member of the organisation. 42. The control group which the appellant selected in the present case comprised the other chief inspectors in the employment of the RUC. Ms McGrenera maintained that they were the appropriate persons with whom to make the comparison. In the appellant's case the employer's practice whereby appraisals were carried out by chief inspectors was terminated. She says that she was less favourably treated than the other chief inspectors, who were of the same rank and were serving in the same branch of the police force, because the practice was allowed to continue in their case. There were two important differences. The first is that the other chief inspectors were serving in other divisions of the Traffic Branch over which Superintendent Laird had no managerial responsibility. The second is that in her case but not in theirs there had been complaints and representations. But the appellant's argument, relying on what Lord Nicholls said in Chief Constable of the West Yorkshire Police v Khan [2001] 1 WLR 1947, is that these are "reason why" points. The crucial question is whether this truly was the reason why she was treated less favourably, or whether she was treated less favourably than the men were on the ground of her sex. As to the prior question, which is whether the complainant was treated less favourably, the appellant's case is that the fact that the other chief inspectors were in different divisions and that complaints and representations were made in her case and not in theirs should be disregarded as these are not to be treated for this purpose as relevant circumstances. 43. The respondent maintains that the question of less favourable treatment must be addressed on the basis that the circumstances of the comparators were the same, or not materially different, from those of the appellant. On his approach, article 7 requires there to be brought into account not only the fact that the other chief inspectors were serving in different divisions over which Superintendent Laird had no responsibility but also the fact that it was in the appellant's case only that complaints had been made and in her case only that representations had been made by the Federation. He submits that it is clear that, when regard is had to these facts, the other chief inspectors were not valid comparators at all. This was the approach taken by the Court of Appeal. It concluded that, because the relevant circumstances of the other chief inspectors were not the same as those of the appellant, her case was bound to fail. This was because she was unable to show that her employer treated her less favourably than he had treated a man in the same employment whose circumstances were the same as, or not materially different from, hers. 44. I confess that I was for a long time attracted by the argument that the test for direct discrimination which article 3(1)(a) lays down can be divided up into two distinct parts, and that the circumstances which are to be considered relevant to the issue raised by the phrase "treats her less favourably" do not include circumstances which are or may be relevant to the question why the woman was treated differently. But, on further examination of the language of the Order, I am persuaded that article 3(1) does not permit this approach. 45. Aziz v Trinity Street Taxis Ltd [1989] QB 463 and Chief Constable of the West Yorkshire Police v Khan [2001] 1 WLR 1947 were, as I have said, cases about discrimination by way of victimisation. As Slade LJ was careful to stress in Aziz at p 476B, the form of discrimination alleged in that case was not discrimination within the meaning of section 1(1) of that Act (the equivalent of article 3(1) of the Order). It was the form of discrimination described as victimisation in section 2 (the equivalent of article 4 of the Order). These two forms, as Slade LJ said, are "quite different." Lord Nicholls, too, explained in Khan at p 1951H, para 18, that he was addressing difficulties which had arisen in the application of the definition of victimisation. He did not address the issues raised by the definition of direct discrimination. 46. The language of article 3(1) and of article 4 is sufficiently similar to enable the same approach to the exercise of comparison to be adopted in each case. The phrase "in any circumstances relevant for the purposes of any provision of this Order" appears in both. And they both use the expression "treats less favourably", which requires a comparison to be made as to how the person treats, or would treat, the person who is said to have been discriminated against or victimised. As against that, there is the obvious point that article 7, which lays down the rule that a comparison of the cases "must be such that the relevant circumstances in the one case are the same, or not materially different, in the other," states that it applies to a comparison under article 3(1) but omits to mention article 4. But I agree with my noble and learned friend Lord Nicholls of Birkenhead that there is no reason in principle why the two comparison exercises should differ in their nature. The rule which article 7 lays down appears to be the same as that which any sensible person would apply when undertaking any exercise by way of a comparison. It appears simply to be requiring that one must compare like with like. If that is so for the purposes of article 3(1), why should it not be so for the purposes of article 4? 47. But the crucial point is that questions to which the "like with like" test is to be applied differ as between these two articles. Article 4, as to victimisation, then lays down a test which falls naturally into two parts. The first part of the test requires an exercise by way of a comparison. This is the less favourable treatment part. It is satisfied if the discriminator treats the person victimised less favourably "than in those circumstances" he treats or would treat other persons. The circumstances which are relevant to this exercise are those described in the provision of the Order, previously referred to in the opening words of the article, which describe the circumstances in which discrimination is unlawful. The second part deals with the reason for that treatment. This part does not involve any comparison at all. What it requires is proof that the treatment complained of was "by reason of" a protected act. A precise list of the things that are protected is then set out in subparagraphs (a) to (d) of the article. It is in that context that a judgment is required, and was made in Aziz and Khan, as to what the circumstances are which must be brought into account for the purposes of the comparison which has to be made under the first part of the article. 48. The structure of article 3(1)(a), on the other hand, is quite different. What it requires is proof that the alleged discriminator treated the woman less favourably on the ground of her sex. The words "than in those circumstances" which define the scope of the comparison required in article 4 are absent. Instead the direction which is set out in article 7 must be applied. It provides that the comparison must be such that "the relevant circumstances" in the one case are the same, or not materially different, in the other. The reason why article 7 does not say that the basis of comparison which it lays down must be applied to a comparison under article 4 is because article 4 itself sets out the basis for the comparison which it requires. It does so by directing attention to the circumstances mentioned in the opening words of the article. This is a narrower basis than that required of article 3 by the phrase "the relevant circumstances" in article 7. The circumstances referred to in this phrase are not just those mentioned in the opening words of article 3. They go much wider than that. The phrase directs attention to all the circumstances which are relevant to the way in which the woman has been treated. Moreover, there is no need to break this test down into two parts. It is, as Lord Nicholls has said, in essence a single question. The comparison which is invited by the words "treats her less favourably" lies at the heart of the entire subparagraph. 49. It is, I think, open to question whether the issue of less favourable treatment should be examined separately from the third issue with which the tribunal dealt under article 3(1)(a), which was whether the treatment which the appellant received was "on the ground of her sex". The third issue is the primary question. It directs attention to the question why the claimant was treated as she was. It calls for an examination of all the facts. If the two issues are to be examined separately, it may be helpful for this question to be addressed first. But, whichever approach is adopted, one must not lose sight of the fact that article 3(1) must be read as a whole and that it must be read together with article 7. A comparison of the cases of persons of a different sex under article 3(1)(a) must therefore be such that all the circumstances which are relevant to the way they were treated in the one case are the same, or not materially different, in the other. 50. The crucial point, then, is this. The application of the rule in article 7 cannot be avoided by breaking article 3(1)(a) down into two parts. This is because this rule applies to article 3(1) as whole. The language of the Order does not permit circumstances which have to be taken into account for one part of article 3(1)(a) to be ignored when the exercise of comparison which the article requires is being applied to the other part. The relevant circumstances must be taken to be the same for both parts of the article, even if these two parts are considered separately. 51. For these reasons I am in agreement with the Court of Appeal that, as the facts of their case were different from that of the appellant, the other chief inspectors were not, on their own facts, valid comparators. I also agree that the tribunal, which appears to have proceeded on the basis that they were, misdirected itself on this point. But I think that the Court of Appeal were wrong not to acknowledge that the issue of less favourable treatment can be examined hypothetically, as is indicated by the words "or would treat" in article 3(1)(a). Carswell LCJ said that the court was following the approach which he had described in Chief Constable of the Royal Ulster Constabulary v A [2000] NI 261, where he said:
In other words, as there was - to apply this formula to the facts of this case - no other chief inspector against whom complaints had been made or about whom representations had been made by the Police Federation, the appellant was bound to fail in her claim that she had been discriminated against. The Court of Appeal held that the appellant's case was bound to fail for the lack of a valid comparator, as she was unable to show that at least one other chief inspector who was in the same position in all respects as she was had been treated differently. |
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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:
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:
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:
I think that it would have been open to the tribunal to draw that inference. Conclusion63. 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:
Article 7 provides:
68. Section 1 of the Race Relations Act 1976 provides:
In Zafar v Glasgow City Council [1998] IRLR 36, 38 Lord Browne-Wilkinson observed:
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:
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:
In paragraph 3.12 the tribunal made the following observations:
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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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:
75. In relation to discrimination by way of victimisation section 2 of the 1976 Act provides:
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:
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:
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:
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:
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:
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:
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:
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:
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:
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:
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:
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:
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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 [1980] QB 87 at 104, cited by Lord Hoffmann in Chief Constable of the West Yorkshire Police v Khan [2001] 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 h |