Shamoon (Appellant) v Chief Constable of the Royal Ulster Constabulary (Respondent) (Northern Ireland)
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  QB 463 and Chief Constable of the West Yorkshire Police v Khan  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  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  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  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  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.
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  1 WLR 1947, should not be followed.
LORD SCOTT OF FOSCOTE
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: