Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] IRLR 285 HL
Discrimination cases rarely reach the House of Lords, but when they do, they matter. The case of Shamoon is no exception. Two vital aspects of discrimination law are considered.
The first is what constitutes a "detriment" and is therefore capable of amounting to unlawful discrimination. There has been a worrying trend to limit the scope of the definition but Shamoon firmly reiterates the principle that a detriment exists if a reasonable worker would or might take the view that the treatment accorded to her had in all the circumstances been to her detriment. It is not necessary to demonstrate some physical or economic consequence.
The case also considered the meaning of discrimination and how tribunals should approach the consideration of whether a complainant has been less favourably treated on grounds of her sex. In cases of direct race or sex discrimination (unless the discrimination is sex-specific or race-specific) the tribunal have to compare the treatment received by the complainant to the treatment of an actual comparator or hypothetical comparator of a different race or sex.
Section 5 (3) of the Sex Discrimination Act (SDA) 1975 provides: "A comparison of the cases of different sexÉmust be such that the relevant circumstances in the one case are the same or not materially different, in the other". Shamoon narrows the scope for complainants to choose their comparators.
Chief Inspector Shamoon worked in the traffic division of the Royal Ulster Constabulary. The traffic division was split into three geographic regions each with its own Chief Inspector who undertook appraisals of junior officers. After complaints about the way Shamoon conducted appraisals and representations from the Police Federation, her Superintendant removed her appraisal responsibilities. She objected and argued this amounted to a detriment and was less favourable treatment on grounds of her sex.
The tribunal took the two other, male, Chief Inspectors in the traffic division as comparators who had retained their appraisal responsibilities. The tribunal found that Ms Shamoon had been treated less favourably than her comparators. It drew an inference this was on grounds of her sex and found in Ms Shamoon's favour.
The Lords criticised the tribunal's approach. It made it clear that, when selecting a comparator, it is insufficient to select a male (or males) in a similar position but their circumstances must be the same, or not materially different to the Applicant. The male Chief Inspectors had not had complaints made against them and the Superintendent lacked direct line responsibility for them. These differences were material and meant that the male Chief Inspectors were not valid comparators. The tribunal should have considered whether Shamoon had been treated less favourably than the two male Chief Inspectors if, hypothetically, they had been subject to complaints and the same line management.
The effect of decision is that real, as opposed to hypothetical, comparators will be rarer to find.
The Lords also considered the classic tribunal approach which is to first assess whether there has been less favourable treatment, and if so, consider if the treatment was on grounds of sex (or whatever the prohibited ground may be). The Lords stated that it may be more convenient in some cases to treat both questions together, or to look at the reason why issue before the less favourable treatment issue.