Shamoon v Chief Constable of the Royal Ulster Constabulary

JurisdictionEngland & Wales
CourtHouse of Lords
JudgeLORD HUTTON,LORD SCOTT OF FOSCOTE,LORD RODGER OF EARLSFERRY,LORD HOPE OF CRAIGHEAD,LORD NICHOLLS OF BIRKENHEAD
Judgment Date27 Feb 2003
Neutral Citation[2003] UKHL 11

[2003] UKHL 11

HOUSE OF LORDS

The Appellate Committee comprised:

Lord Nicholls of Birkenhead

Lord Hope of Craighead

Lord Hutton

Lord Scott of Foscote

Lord Rodger of Earlsferry

Shamoon
(Appellant)
and
Chief Constable of the Royal Ulster Constabulary
(Respondent) (Northern Ireland)
LORD NICHOLLS OF BIRKENHEAD

My Lords,

1

This is a sex discrimination case. The appeal raises an issue concerning identification of the appropriate comparator. It is not the first time this type of issue has come before the courts in discrimination cases. So it may be helpful to go back to first principles.

2

In this country discrimination law is statute-based. Statute law prohibits discrimination on specified grounds, such as sex, in specified circumstances, such as the field of employment. Initially the proscribed grounds were sex, marital status and race. Disability and gender reassignment have since been added to the list. Additionally, in Northern Ireland the proscribed grounds include religious belief and political opinion. Each statutory provision specifies with some particularity the circumstances in which discrimination, on the relevant proscribed ground, is unlawful. For instance, under section 6(2) of the Sex Discrimination Act 1975 it is unlawful for an employer to discriminate against an employee by dismissing her or him.

3

The definition of discrimination differs in some respects from statute to statute. But the essence of what is known colloquially as direct discrimination is the same in all the statutes. It consists of treating one person less favourably than another on the proscribed ground. Thus, to take the provisions of the Sex Discrimination Act 1975 as illustrative, section 1(1) of that Act provides:

"A person discriminates against a woman in any circumstances relevant for the purposes of any provision of this Act if -

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

The 'circumstances relevant for the purposes of any provision of this Act' are the circumstances in which discrimination is prohibited by the Act: see R v Immigration Appeal Tribunal, Ex parte Kassam [1980] 1 WLR 1037, 1041, per Stephenson LJ, and Chief Constable of the West Yorkshire Police v Khan [2001] 1 WLR 1947, 1953.

4

Thus, where the act complained of consists of dismissal from employment, the statutory definition calls for a comparison between the way the employer treated the claimant woman (dismissal) and the way he treated or would have treated a man. It stands to reason that in making this comparison, with a view to deciding whether a woman who was dismissed received less favourable treatment than a man, it is necessary to compare like with like. The situations being compared must be such that, gender apart, the situation of the man and the woman are in all material respects the same. This self-evident proposition is spelled out in section 5(3) of the Sex Discrimination Act: see Dillon LJ in Bain v Bowles [1991] IRLR 356, 357. As originally enacted (the later amendments are not relevant for present purposes), section 5(3) provides:

"A comparison of the cases of persons of different sex or marital status under sections 1( 1) or 3(1) must be such that the relevant circumstances in the one case are the same, or not materially different, in the other."

This provision applies regardless of whether the comparator is an actual person or a hypothetical person. It is equally applicable to both types of comparator.

5

Each of the statutory provisions also includes victimisation within the definition of discrimination. This is an essential ancillary safeguard. Persons who exercise their statutory rights are not to be penalised for doing so. Employers and others who retaliate in this way are guilty of discrimination. The victimisation provisions adopt substantially the same structure as the direct discrimination provisions, save only that the proscribed ground is different. In cases of direct discrimination, the proscribed ground is sex, or whatever. In cases of victimisation the proscribed ground is that the claimant committed one of the 'protected acts'; for instance, that the claimant had brought proceedings under the Act. Subject to this necessary adjustment, the definition of victimisation calls for a similar 'less favourable treatment' comparison. In the case of direct sex discrimination the comparison is between the treatment afforded to the claimant woman and that afforded to a man. In the case of victimisation the comparison is between the treatment afforded to the claimant and the treatment afforded to a person who has not committed a protected act. Section 4 of the Sex Discrimination Act provides:

"(1) A person ("the discriminator") discriminates against another person ("the person victimised") in any circumstances relevant for the purposes of any provision of this Act if he treats the person victimised less favourably than in those circumstances he treats or would treat other persons, and does so by reason that the person victimised has -

(a) brought proceedings against the discriminator or any other person under this Act …[etc]"

6

In the Sex Discrimination Act there is one linguistic difference between section 1(1), defining direct discrimination, and section 4, defining discrimination by way of victimisation. Section 5(3), containing the 'like with like' direction, is expressed to apply to sections 1(1) (sex discrimination) and 3(1) (marital status discrimination). Section 5(3) makes no mention of section 4(1) (victimisation). I do not think this omission is significant. I can see no reason in principle why the two comparison exercises should differ in their nature. Rather, although the language may be maladroit, the phrase 'in those circumstances' in section 4(1) seems to be intended to serve the same purpose in relation to victimisation as section 5(3) serves in relation to direct discrimination under section 1(1). Indeed, this is made explicit in the updated language of the Disability Discrimination Act 1995. In the definition of victimisation in that Act, section 55(1) calls for a comparison between the treatment afforded to the claimant and the treatment afforded to 'other persons whose circumstances are the same' as those of the claimant.

7

With this introduction I turn to consider the application of these provisions in practice. In deciding a discrimination claim one of the matters employment tribunals have to consider is whether the statutory definition of discrimination has been satisfied. When the claim is based on direct discrimination or victimisation, in practice tribunals in their decisions normally consider, first, whether the claimant received less favourable treatment than the appropriate comparator (the 'less favourable treatment' issue) and then, secondly, whether the less favourable treatment was on the relevant proscribed ground (the 'reason why' issue). Tribunals proceed to consider the reason why issue only if the less favourable treatment issue is resolved in favour of the claimant. Thus the less favourable treatment issue is treated as a threshold which the claimant must cross before the tribunal is called upon to decide why the claimant was afforded the treatment of which she is complaining.

8

No doubt there are cases where it is convenient and helpful to adopt this two step approach to what is essentially a single question: did the claimant, on the proscribed ground, receive less favourable treatment than others? But, especially where the identity of the relevant comparator is a matter of dispute, this sequential analysis may give rise to needless problems. Sometimes the less favourable treatment issue cannot be resolved without, at the same time, deciding the reason why issue. The two issues are intertwined.

9

The present case is a good example. The relevant provisions in the Sex Discrimination (Northern Ireland) Order 1976 are in all material respects the same as those in the Sex Discrimination Act 1975 which, for ease of discussion, I have so far referred to. Chief Inspector Shamoon claimed she was treated less favourably than two male chief inspectors. Unlike her, they retained their counselling responsibilities. Is this comparing like with like? Prima facie it is not. She had been the subject of complaints and of representations by Police Federation representatives, the male chief inspectors had not. This might be the reason why she was treated as she was. This might explain why she was relieved of her responsibilities and they were not. But whether this factual difference between their positions was in truth a material difference is an issue which cannot be resolved without determining why she was treated as she was. It might be that the reason why she was relieved of her counselling responsibilities had nothing to do with the complaints and representations. If that were so, then a comparison between her and the two male chief inspectors may well be comparing like with like, because in that event the difference between her and her two male colleagues would be an immaterial difference.

10

I must take this a step further. As I have said, prima facie the comparison with the two male chief inspectors is not apt. So be it. Let it be assumed that, this being so, the most sensible course in practice is to proceed on the footing that the appropriate comparator is a hypothetical comparator: a male chief inspector regarding whose conduct similar complaints and representations had been made. On this footing the less favourable treatment issue is this: was Chief Inspector Shamoon treated less favourably than such a male chief inspector would have been treated? But, here also, the question is incapable of being answered without deciding why Chief Inspector Shamoon was treated as she...

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2 books & journal articles
  • New rights for old. Flexi‐working and sex discrimination
    • United Kingdom
    • Employee Relations Nbr. 26-2, April 2004
    • 1 April 2004
    ...2003 the House of Lords gave their long-awaited decisionin the case of Shamoon v. Chief Constable of the Royal Ulster Constabulary(2003, UKHL 11, 2003, All ER 26, 2003 IRLR 285), but on 30 January 2003 theCourt of Appeal had considered the issue in detail in the case of Jiad v. Byfordand Ot......
  • Putting Race and Gender Together: A New Approach To Intersectionality
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    • The Modern Law Review Nbr. 72-5, September 2009
    • 1 September 2009
    ...thinking about the identi¢cation of unlawful discrimination. It encourages125 Shamoon vChief Constable of the Royal Ulster Constabulary [2003] UKHL 11; [2003] 2 All ER 26(Shamoon). See also the approach of Lord Nicholls LJ in Chief Constable of WestYorkshire Police vKhan [2001] ICR 1065 an ......