Emplaw In sex and race discrimination cases an employee must generally be able to show that he or she has been treated less favourably than a person of the opposite sex who is in comparable circumstances. If there is no such comparator then in the absence of some evidence pointing to the conclusion that a person of the other sex would have been treated differently there cannot be discrimination even if the treatment afforded to the complaining employee was andquot; unsatisfactory or even harshandquot;.
Outline facts:-
Ms Joan Shamoon was a Chief Inspector in the Royal Ulster Constabulary with 22 years service. After a complaint from two constables about the way in which she conducted appraisals of their performance, her superior officer removed her responsibilities in respect of staff appraisals. Also an inspector was appointed to assist with her administrative duties generally. She claimed that she had been singled out from other Chief Inspectors who continued to perform such appraisal duties, that the appointment of an inspector to help her undermined her position and that this was all unfavourable treatment afforded to her because she was a woman.
Ms Shammon won her sex discrimination case at the industrial tribunal and the Police appealed to the Northern Ireland Court of Appeal.
Decision:-
The Police won the appeal.
The main point made by the NI Court of Appeal in overruling the decision of the industrial tribunal was that, in their view, Ms Shamoon had not suffered any andquot; detrimentandquot;, quoting with approval from the EAT’s judgment in Coker and Osamor v The Lord Chancellor, Lord Irvine 2001 ICR 507 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’. An unjustified sense of grievance could not amount to a detriment.
Although this was enough to dispose of the case nevertheless the NI Court of Appeal went on to consider other issues. One of these was the question of who were valid comparators. The Court of Appeal held that there were none in this case as no complaints had been made about appraisals conducted by the other Chief Inspectors 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’
Editor’s note:
The report of this case suggests that no reference was made to Mishriki v West Midlands Health Authority 2000, CA 20th June 2000 (unreported) which provides support for the contrary proposition that if no valid comparator can be found it would be legitimate to make a comparison with a hypothetical comparator.
Judges:
Carswell LCJ
Citations:
[2001] NICA 23
Links:
Statutes:
Sex Discrimination (Northern Ireland) Order 1976 (1976 No 1042 NI)
Jurisdiction:
Northern Ireland
Citing:
See Also – Shamoon v Chief Constable of the Royal Ulster Constabulary CANI 28-Jun-2001
. .
Cited by:
Appeal from – Shamoon v Chief Constable of the Royal Ulster Constabulary HL 27-Feb-2003
The applicant was a chief inspector of police. She had been prevented from carrying out appraisals of other senior staff, and complained of sex discrimination.
Held: The claimant’s appeal failed. The tribunal had taken a two stage approach. It . .
See Also – Shamoon v Chief Constable of the Royal Ulster Constabulary CANI 28-Jun-2001
. .
Lists of cited by and citing cases may be incomplete.
Discrimination
Updated: 27 June 2022; Ref: scu.201972
