10 March 2003

Commentary from Daniel Barnett

House of Lords - Comparators in Discrimination

On 27th February 2003, the House of Lords handed down its opinion in the important discrimination case Shamoon v Chief Constable of the Royal Ulster Constabulary.

The Facts

Chief Inspector Shamoon worked in the traffic division of the Royal Ulster Constabulary. The traffic division was split into three geographic regions. Along with her, there were two other Chief Inspectors (one for each of the other regions) who undertook appraisals of junior police offices.

The union was unhappy with the way in which Chief Inspector Shamoon conducted some of these appraisals, and asked her superior officer, the Superintendent, to remove appraisal responsibilities from Ms Shamoon. The Superintendent agreed.

The Tribunal's Decision

The tribunal took the two other, male, Chief Inspectors as comparators. They had not had their appraisal responsibilities removed. Accordingly, 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 House of Lords

The House of 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. The comparator must be somebody where "the relevant circumstances in the one case are the same, or not materially different, in the other." (Sex Discrimination Act 1975, s5(3))

This meant that the male Chief Inspectors were not appropriate comparators within the meaning of the legislation. There were material differences. First, no complaints had been made against the other Chief Inspectors. Second, the Superintendent lacked direct line responsibility for the other two Chief Inspectors. These differences meant that the male Chief Inspectors could not, as things stood, be valid comparators.

What the tribunal should have done was considered whether Ms 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.

Comment

This decision appears to make it harder for Applicants to establish valid real comparators.

Two other matters in the decision are of interest.

First, the House of Lords said that the traditional two stage approach (namely (1) was there less favourable treatment; (2) was it on grounds of sex) is not mandatory and often will not be appropriate.

Second, Lord Scott stated that when deciding whether to infer that treatment was on ground of gender, a tribunal would normally be expected to identify matters such as discriminatory comments made by the alleged discriminator about the victim, or "unconvincing denials of a discriminatory intent coupled with unconvincing assertions of other reasons for the allegedly discriminatory decision."

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Daniel Barnett

Daniel Barnett is a barrister at 2 Gray's Inn Square Chambers

www.danielbarnett.co.uk