Shamoon (Appellant) v Chief Constable of the Royal Ulster Constabulary (Respondent) (Northern Ireland)
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  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)  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  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  ICR 516, 528-529 and approved by Lord Browne-Wilkinson in Zafar v Glasgow City Council  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.
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  UKHL 48;  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  ICR 514. Bingham LJ's observation in Barclays Bank plc v Kapur  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  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  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)  IRLR 87. But, contrary to the view that was expressed in Lord Chancellor v Coker and Osamor  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  EWCA Civ 1347;  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  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  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 6 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  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  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  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  QB 463 and Chief Constable of the West Yorkshire Police v Khan  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 6 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 6 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 6. 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 6?
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 6, 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 6 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 6 is because article 6 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  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.