Shamoon v Chief Constable of the Royal Ulster Constabulary

This appeal concerns the correct approach to comparators and proof in a claim of direct sex discrimination under the Sex Discrimination (Northern Ireland) Order 1976 (notably articles 3(1) and 7) and the meaning of "detriment" in the employment context. The House reaffirmed that the statutory test requires comparison with a person in the same or not materially different circumstances and that, where appropriate, a hypothetical comparator may be used. A tribunal deciding discrimination must examine why the claimant was treated as she was; if the employer's explanation is unsatisfactory an inference of discrimination may be drawn. The House concluded that the industrial tribunal’s majority gave insufficient reasons for concluding that the appellant had been treated on the ground of her sex and that the finding was therefore unsupportable.

The appellant, Chief Inspector Shamoon, alleged that her superior, Superintendent Laird, had removed from her the task of acting as counselling officer for constable appraisals and that this treatment amounted to unlawful sex discrimination contrary to article 3(1) of the Sex Discrimination (Northern Ireland) Order 1976 and to a detriment under article 8(2)(b). The industrial tribunal found by a majority that she had been discriminated against; the Court of Appeal (Northern Ireland) reversed that decision and answered questions of law in the respondent's favour; the case came to the House of Lords on appeal.

The principal issues identified by the House were:

• whether the tribunal correctly identified appropriate comparators under article 7;
• whether the removal of the appraisal duties amounted to a "detriment" within article 8(2)(b); and
• whether the tribunal’s reasoning supported the inference that the treatment was "on the ground of her sex".

The House reviewed relevant statutory provisions and authorities and explained that the comparator required by article 3(1) must be in the same or not materially different circumstances; those circumstances include the matters relevant to the way the employer treated the claimant (for example complaints and representations that influenced the employer). Where there is no suitable actual comparator, the statute permits use of a hypothetical comparator and tribunals may approach the determinative question by examining why the claimant was treated as she was. The House also applied the later reasoning in Chief Constable of the West Yorkshire Police v Khan on the meaning of "detriment" and held that removal of the appraisal role could amount to a detriment.

On the facts, however, the House concluded that the tribunal majority had failed adequately to explain why they regarded the treatment as on the ground of sex; their reasoning was opaque and left a critical gap. For that reason the majority's conclusion was unsupportable and the appeal was dismissed.

Appeal dismissed. The House held that (1) the correct comparator under article 3(1) must be in the same or not materially different circumstances and that where necessary a hypothetical comparator may be used; (2) tribunals should concentrate on why the claimant was treated as she was and, if the employer's explanation is inadequate, may infer discrimination; (3) the removal of appraisal duties could amount to a detriment (following Chief Constable of West Yorkshire Police v Khan), but on the facts the tribunal’s majority failed to give adequate reasons to support its conclusion that the treatment was "on the ground of her sex" and that conclusion was therefore unsupportable.

Appeal from the Court of Appeal in Northern Ireland (decision delivered 18 May 2001, [2001] NICA 23) following a case stated by an industrial tribunal which had reached a divided decision. The House of Lords heard the appeal and dismissed it on 27 February 2003.