1. This is an appeal by way of case stated against the decision of an industrial tribunal given on 16 June 2000, whereby the tribunal found that the respondent, Chief Inspector Joan Cartwright Shamoon, had been discriminated against on the grounds of her sex. The responsibilities which she had hitherto undertaken in respect of staff appraisals were removed from her by her superior officer Superintendent Laird. The respondent claimed that she had been singled out from other chief inspectors in her branch, who continued to perform these duties, and that this constituted discrimination on grounds of her sex. The tribunal held that she had been less favourably treated than comparable officers and, by a majority, that that unfavourable treatment was because she was a woman. The appellant has challenged these findings on the ground that the respondent was not discriminated against, in that (a) she was not subjected to any detriment (b) she was not treated less favourably than a male officer would have been on the grounds of her sex.

2. The Sex Discrimination (Northern Ireland) Order 1976 (the 1976 Order) makes unlawful discrimination against a woman on the ground of her sex in a number of fields of activity. In the employment field the material provisions are contained in paragraphs (1) and (2) of Article 8:

3. Discrimination is defined in Article 3, of which the material part for present purposes is paragraph (1)( a):

4. Article 7 sets out the basis of comparison:

5. At the time when her complaint was lodged the respondent had been a member of the Royal Ulster Constabulary for 22 years and had held the rank of chief inspector since September 1995. Since that time she had been deputy head of Urban Traffic Branch, one of three divisions within the Traffic Branch of the RUC. She had been deputy to three superintendents in charge of her branch before Superintendent Laird became head in February 1997. It had thitherto been the practice for her to carry out counselling in respect of staff appraisals on constables, although the RUC Staff Appraisal Scheme provided that the reports “will normally be completed” by a superintendent. The tribunal found that it was the established custom and practice for this duty to be carried out by chief inspectors in Traffic Branch and that it was done regularly by the chief inspectors in the other two divisions.

6. In April 1997 a complaint was made to Superintendent Laird by a Constable Lowens about the manner in which the respondent had conducted his appraisal. The complaint was upheld by the superintendent. In September 1997 Constable Currie expressed dissatisfaction about the terms of the respondent’s report on him. After discussion with Superintendent Laird the respondent agreed to delete some words to which the constable took exception, but the matter did not end there, because the constable took his complaint to the Police Federation. The Federation’s representatives asked for a meeting with Superintendent Laird concerning staff appraisals. They had a long meeting, which was directed to procedures, but the tribunal found that it was probable that the respondent’s handling of Constable Currie’s appraisal was specifically discussed, as it was certainly the background against which the meeting had been sought. In the course of the meeting the superintendent assured the Federation personnel that he would not act contrary to policy or procedures. They then brought to his attention the terms of the Staff Appraisal Scheme, whereupon he accepted that he should follow the letter of the Scheme. He promised that thenceforth he would do the appraisals, though in his absence they would be carried out by the respondent. When he informed the respondent of the outcome of the meeting she expressed considerable dissatisfaction and annoyance over what she appears to have regarded as a failure to stand up to the Federation and resist their demands. It does not appear that the respondent carried out any more appraisals of constables between that time and the time when the Force policy changed on appraisals in December 1997, although the chief inspectors in the other two divisions of Traffic Branch continued to perform these duties as before.

7. The respondent claimed that she had been discriminated against in two respects, first in having the right to carry out appraisals removed from her and, secondly, in that her role was undermined by the appointment on 1 October 1997 of an Inspector (Operational Support) to assist with her administration duties. The tribunal by a majority found that she had been discriminated against on the ground of sex in respect of the first part of the complaint, but held unanimously in respect of the second part that she had not suffered a detriment and so had not a claim.

8. The respondent then brought three more discrimination claims against the appellant. The first, dated 20 February 1998, claimed that she had been subjected to continuing discrimination by Superintendent Laird since she lodged the first complaint on 9 December 1997. The second, lodged on 13 April 1998, was based on an allegation that she had been deprived of the opportunity to act up as superintendent during Mr Laird’s absence on a course by the importation of another superintendent. The third, also lodged on 12 April 1998, concerned her failure to achieve promotion to the rank of superintendent. The tribunal found against the respondent in respect of all three claims. None of them forms any part of the present appeal, nor have we been concerned with the appointment of the Inspector (Operational Support).

9. The respondent asked the tribunal to regard the other two chief inspectors in 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. In the absence of evidence of a regular way in which persons in the same circumstances are treated, a complainant has to prove that at least one other person in comparable circumstances has been treated differently, which may tend to show how others would be treated if they and not the complainant had been concerned.

10. The tribunal concluded unanimously that the respondent had been treated less favourably the comparators, and, by a majority, that such treatment was because she was a woman. Its reasoning was contained in paragraphs 3.12 and 3.13 of its decision:

11. By requisition dated 26 July 2000 the appellant requested the tribunal to state a case on four questions of law, and on 29 December 2000 the tribunal stated a signed a case on those questions of law, which are set out as follows:

12. Mr Weatherup QC for the appellant argued on three grounds that the decision of the tribunal was wrong in law and should be reversed:

13. Although the issues in (b) and (c) represent the two separate parts of the question whether the complainant has been treated less favourably than a man on the grounds of her sex (cf Glasgow City Council v Zafar [1998] ICR 120 at 123, per Lord Browne-Wilkinson), in the present case they tend to shade into one another, in that some of the same factors are material in determining each issue.

14. The only part of Article 8 of the 1976 Order which is capable of applying to the present case is the final part of Article 8(2)( b), which makes it unlawful for an employer to discriminate a woman by “dismissing her, or subjecting her to any other detriment”. The Employment Appeal Tribunal in Lord Chancellor v Coker and Osamor [2001] IRLR 116 adopted, in our view correctly, a construction of “detriment” which is ejusdem generis with “dismissing”, holding that –

15. This is in accord with the decision of the Court of Appeal in Barclays Bank plc v Kapur [1995] IRLR 87 that an unjustified sense of grievance cannot amount to a detriment. The tribunal did not enter into discussion of the concept of detriment, but said in paragraph 10 of the case stated that “Superintendent Laird removed the right to continue to do appraisals on Constables”, which it appears to have assumed to be a detriment. In failing to consider whether the respondent had been subjected to a detriment the tribunal was accordingly in error. In our opinion there is nothing in the evidence which could suffice to found a conclusion that the respondent had suffered a detriment within the meaning of Article 8(2)( b). She did not have a “right” to carry out appraisals, and it was at most a practice that this work was entrusted to her. There was no loss of rank and no financial consequence when the function was removed from her. On the construction of “detriment” which we consider correct we are of opinion that no tribunal properly applying the law could conclude that she had suffered a detriment. We therefore on this ground would reverse the decision of the tribunal and dismiss the respondent’s complaint.

16. That is sufficient to determine the appeal, but lest we should be wrong in our construction of what constitutes a detriment, we shall consider the other issues argued before us.

17. In our view if it 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.

18. We reach the same conclusion when we consider the third issue, whether the treatment of the respondent, if it was different from that of other officers, was because she was a woman. At this point the respondent would be entitled to invoke the approach set out by Neill LJ in King v Great Britain-China Centre [1992] ICR 516 at 528-9 and approved by Lord Browne-Wilkinson in Glasgow City Council v Zafar [1998] ICR 120 at 126. Adopting for the purposes of this argument the hypothesis that the respondent had been treated differently from male officers, the tribunal would be entitled to consider the possibility of sex discrimination and look to the employer for an explanation. That explanation is furnished in the present case by the fact that complaints were made about the respondent’s discharge of her duties and the Police Federation made representations about her. The onus then remains with the claimant to establish that her different treatment was on the ground of her sex. There is no evidence to be found in the case stated or the tribunal’s decision which would furnish any basis for such a finding and the conclusion of the majority of the tribunal set out in paragraph 3.13 of its decision is in our opinion insupportable. Applying the principles set out in our judgment in Chief Constable of the RUC v A [2000] NI 261 at 273, we must on this ground also set aside the tribunal’s decision. Again we are of opinion that no reasonable tribunal could reach a conclusion in favour of the respondent on this ground on the evidence set out, and we must reverse the tribunal’s decision.

19. We therefore answer in the negative Questions 1, 2 and 4 of the questions posed in the case stated. We do not answer Question 3. We shall allow the appeal, reverse the decision of the tribunal and dismiss the respondent’s complaint.