Judgment: approved by the Court for handing down
(subject to editorial corrections)
Ref:	CARC3412 

Delivered:	03.05.2001

IN HER MAJESTY’S COURT OF APPEAL IN NORTHERN IRELAND

_____ 

BETWEEN

JOAN CARTWRIGHT SHAMOON

							(Applicant) Respondent

and

THE CHIEF CONSTABLE OF THE ROYAL ULSTER CONSTABULARY

		(Respondent) Appellant

_____ 

CARSWELL LCJ

Introduction
	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.
The legislation 
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:
“   8.-(1)  It is unlawful for a person, in relation to employment by him at an establishment in Northern Ireland, to discriminate against a woman –

     (a)	in the arrangements he makes for the purpose of determining who should be offered that employment, or

     (b)	in the terms on which he offers her that employment, or

     (c)	by refusing or deliberately omitting to offer her that employment.

     (2)	It is unlawful for a person, in the case of a woman employed by him at an establishment in Northern Ireland, to discriminate against her –
	
     (a)	in the way he affords her access to opportunities for promotion, transfer or training, or to any other benefits, facilities or services, or by refusing or deliberately omitting to afford her access to them, or
     (b)	by dismissing her, or subjecting her to any other detriment.”

 Discrimination is defined in Article 3, of which the material part for present purposes is paragraph (1)(a):
“A person discriminates against a woman in any circumstances relevant for the purposes of any provision of this Order if –

     (a)	on the ground of her sex he treats her less favourably than he treats or would treat a man …” 

Article 7 sets out the basis of comparison:
“   7.   A comparison of the cases of persons of different sex or marital status under Article 3(1) or 5(1) must be such that the relevant circumstances in the one case are the same, or not materially different, in the other.”

The factual background
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.
	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.
	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.
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).
	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.  
	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:
“3.12	…

	Superintendent Laird had several options available to him following the representation by the Federation other than the action that he did take.  He could have asked the Federation whether they were proposing to take this matter up within the Force generally.  He could have, as was suggested by Superintendent Craig in his evidence, been reluctant to act immediately and to seek further guidance either from Human Resources or the ACC Belfast.  He could have checked with the other regions as to what his response should have been.  He did not raise the matter at the monthly meetings of senior officers and did not see any merit in doing so.  He acted without delay to the representations by the Federation notwithstanding that the procedures were to be changed in December and the Federation representative should have had full knowledge of the proposed changes.

The tribunal concluded unanimously that the applicant had been unfavourably treated by Superintendent Laird in respect of the appraisals.

3.13	The tribunal then had to give consideration to the question as to whether the treatment meted out to her was because she was a woman.

It was common knowledge that the policy relating to appraisals was to change in December 1997.  It was therefore open to the Superintendent to question the Federation as to the need to strictly follow the Force Regulations when they were to be changed in less than three months.  There did not appear to be any urgent need to change what had become the custom and practice within the Force generally that Chief Inspectors did the counselling of Constables.  In addition by the time of the Federation meeting the offending section in Constable Currie’s appraisal had been deleted on Superintendent Laird’s evidence.  If that was so, what was the need for such a meeting, Constable Currie was now satisfied.  The only change as a consequence of the meeting was that the applicant had the completion of appraisals taken from her.  That seems to have been the prime reason for the meeting.  As far as the tribunal are aware, the Federation did not make any further representations within the Force with regard to Chief Inspectors doing counselling and the strict compliance with the Regulations.

The majority of the tribunal were of the opinion that there was sufficient material from which it could reach the opinion that the applicant had been discriminated against on the grounds of her sex.  The majority of the tribunal accepted that the changing of what had been the custom and practice regarding the completion of staff appraisals by Chief Inspectors only related to the applicant, and were satisfied that she had been treated differently because she was a woman.  The minority member was of the opinion that the less favourable treatment was not because of her gender and was of the opinion that a male Chief Inspector in similar circumstances would have received similar treatment.”
 
	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:
“1.	Was the tribunal correct in law in holding that the relevant circumstances in each case relating to the applicant and the two Chief Inspectors referred to as comparators in paragraph 3(11) of the tribunal’s decision were not materially different within the meaning of Article 7 of the Sex Discrimination (Northern Ireland) Order 1976?

2.	Was the tribunal correct in law in holding that the respondent treated the applicant less favourably than they treated or would treat other persons?

3.	Was the tribunal correct in this application of the burden of proof?

4.	Was the tribunal entitled on the facts proved or admitted to hold that the applicant was so treated on the grounds of her sex?”

The issues	
Mr Weatherup QC for the appellant argued on three grounds that the decision of the tribunal was wrong in law and should be reversed:
(a)	the respondent had not suffered a detriment within the meaning of Article 8(2)(b) of the 1976 Order;
(b)	there was no sufficient basis for the finding that Superintendent Laird had treated her less favourably than he treated or would have treated other comparable persons;
(c)	if he had treated her less favourably, there was no sufficient basis for the finding that such treatment was because she was a woman.
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.
Detriment
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 –
“there has to be some physical or economic consequence as a result of discrimination to constitute a detriment in this context, which is material and substantial.”

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.
	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.
Less favourable treatment
We stated in Chief Constable of the RUC v A [2000] NI 261 at 271 that the circumstances which are to be regarded as relevant for the purposes of construction of section 16A of the Fair Employment (Northern Ireland) Act 1976, in a case in which religious discrimination is alleged, are those upon which a reasonable person would place some weight in determining how to treat another.  The same criterion should in our opinion be applied to the closely similar provisions of Article 7 of the 1976 Order.  The tribunal regarded the chief inspectors in the other divisions of Traffic Branch as comparators because they held similar rank and carried similar responsibilities in their regions.  There were, however, other circumstances in the respondent’s case which did not apply to the other chief inspectors, namely that complaints had been made against the respondent about her performance of the appraisal of constables and that representations had been made by the Police Federation about that.  In our view these are circumstances which no reasonable person could ignore or omit in comparing the respondent with the other chief inspectors for present purposes.  The tribunal did not advert to the test to be adopted in determining who were valid comparators (nor did it refer to the decision in Chief Constable of the RUC v A), and did not state what criterion it adopted.  It simply found in paragraph 3.12 of its decision that “the applicant had been unfavourably treated by Superintendent Laird in respect of the appraisals”.  In that respect the tribunal was in error and its decision cannot stand.  We repeat the first of the principles to be adopted which we set out in Chief Constable of the RUC v A [2000] NI 261 at 273:
“   1.   Where no apt comparison with the case under consideration is available it is wrong to equate treatment which the tribunal finds to be unsatisfactory or even harsh with unlawfully discriminatory treatment in the absence of some evidence pointing towards the conclusion that a person of a different religion would have been treated differently: see Marks & Spencer plc v Martins [1998] ICR 1005.”

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.  
Treatment on grounds of sex
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.
Conclusion
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.

IN HER MAJESTY’S COURT OF APPEAL IN NORTHERN IRELAND

_____ 

BETWEEN

JOAN CARTWRIGHT SHAMOON

							(Applicant) Respondent

and

THE CHIEF CONSTABLE OF THE ROYAL ULSTER CONSTABULARY

		(Respondent) Appellant

_____ 

JUDGMENT

OF

CARSWELL LCJ

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