Ipsofactoj.com: International Cases [2003] Part 6 Case 4 [HL]


HOUSE OF LORDS

Coram

Shamoon

- vs -

Chief Constable of the

Royal Ulster Constabulary

LORD NICHOLLS OF BIRKENHEAD

LORD HOPE OF CRAIGHEAD

LORD HUTTON

LORD SCOTT OF FOSCOTE

LORD RODGER OF EARLSFERRY

27 FEBRUARY 2003


Judgment

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 was. It is impossible to decide whether Chief Inspector Shamoon was treated less favourably than a hypothetical male chief inspector without identifying the ground on which she was treated as she was. Was it grounds of sex? If yes, then she was treated less favourably than a male chief inspector in her position would have been treated. If not, not. Thus, on this footing also, the less favourable treatment issue is incapable of being decided without deciding the reason why issue. And the decision on the reason why issue will also provide the answer to the less favourable treatment issue.

  11. This analysis seems to me to point to the conclusion that employment tribunals may sometimes be able to avoid arid and confusing disputes about the identification of the appropriate comparator by concentrating primarily on why the claimant was treated as she was. Was it on the proscribed ground which is the foundation of the application? That will call for an examination of all the facts of the case. Or was it for some other reason? If the latter, the application fails. If the former, there will be usually be no difficulty in deciding whether the treatment, afforded to the claimant on the proscribed ground, was less favourable than was or would have been afforded to others.

  12. The most convenient and appropriate way to tackle the issues arising on any discrimination application must always depend upon the nature of the issues and all the circumstances of the case. There will be cases where it is convenient to decide the less favourable treatment issue first. But, for the reason set out above, when formulating their decisions employment tribunals may find it helpful to consider whether they should postpone determining the less favourable treatment issue until after they have decided why the treatment was afforded to the claimant. Adopting this course would have simplified the issues, and assisted in their resolution, in the present case.

  13. The views expressed above accord with the decision of your Lordships' House in the victimisation case of Chief Constable of the West Yorkshire Police v Khan [2001] 1 WLR 1947. The observations made by myself and others in that case regarding comparators have to be read in the context of the particular issue then before the House. The claimant, Sergeant Khan, was looking for new employment with another employer. He had unsuccessfully sought a reference from his existing employer, the Chief Constable of West Yorkshire. He claimed that his request had been refused because he had started proceedings in an industrial tribunal alleging racial discrimination. The Chief Constable submitted that in deciding the less favourable treatment issue Mr. Khan's treatment was to be compared with the treatment which would have been afforded to a hypothetical police officer having two characteristics:

    • first, that he had not committed a protected act and,

    • secondly, that he had brought proceedings against the Chief Constable on some other ground, such as libel or wrongful dismissal.

    The House rejected the second half of this submission. The statute calls for a simple comparison between the treatment given to Mr. Khan and the treatment which would have been given to a police officer who had not done a protected act. Protected act aside, the hypothetical comparator should be in the same position as Mr. Khan, not in an admittedly different but allegedly comparable position.

    THE PRESENT CASE

  14. The majority of the industrial tribunal expressed themselves as satisfied that Chief Inspector Shamoon 'had been treated differently because she was a woman'. With all respect to the tribunal, I have to say that the reasoning underlying this conclusion is far from clear. Superintendent Laird acted in response to representations made by the Police Federation. The Federation representatives did not make similar representations in respect of male chief inspectors in other traffic regions. The tribunal considered it was not required to decide whether the Federation representatives 'had been guilty of discrimination' against Chief Inspector Shamoon. But if the Federation representatives were not discriminating against Chief Inspector Shamoon on the ground of her sex, it is far from clear why Superintendent Laird, in response to the Federation representatives, should nevertheless have acted on the grounds of sex. This is possible, but some further explanation was called for in this case, not least because the tribunal's prior consideration of the less favourable treatment issue is opaque.

  15. Insufficiency of reasons ordinarily leads to the case being remitted for a re-hearing, although neither party made such a request in this case. Such a direction is not appropriate if there was no evidence on which a properly directed tribunal could have upheld the claimant's application. Whether there was such evidence in this case is an issue on which I have entertained more doubt than your Lordships. In reaching its overall conclusion the tribunal set out some criticisms of Superintendent Laird's evidence. There was no urgent need to change the practice, and the Force regulations were being altered in less than three months' time. I am inclined to think that a well reasoned decision could not have been upset as perverse. However, since all your Lordships consider otherwise I would not dissent on this point. In agreement, therefore, with all your Lordships I too would dismiss this appeal.

    Lord Hope of Craighead

    My Lords,

  16. This is an appeal from a decision of the Court of Appeal in Northern Ireland (Carswell LCJ and Nicholson and McCollum LJJ) which was delivered on 18 May 2001 allowing an appeal by way of case stated against the decision of an industrial tribunal that the appellant, Chief Inspector Joan Cartwright Shamoon, had been discriminated against on the grounds of her sex.

  17. The appellant had lodged a complaint with an industrial tribunal for Northern Ireland on 9 December 1997 alleging that she had been discriminated against on the ground of her sex contrary to article 3 of the Sex Discrimination (Northern Ireland) Order 1976 by her employer, the Chief Constable of the Royal Ulster Constabulary. In April 1998 she lodged three further applications in which she alleged that she had been subjected to unlawful discrimination and victimisation in the course of her employment. After a hearing which lasted for twenty four days and took place on various dates between 18 October 1999 and 30 March 2000, the tribunal dismissed the three complaints which were lodged in April 1998. But the first complaint was upheld. A majority of the tribunal were of the opinion that there was sufficient material in the evidence from which it could reach the opinion that she had been discriminated against on the grounds of her sex.

  18. The respondent expressed dissatisfaction with the decision of the tribunal and requested it to state a case for the opinion of the Court of Appeal on the following questions of law:

    1. Was the tribunal correct in law in holding that the relevant circumstances in each case relating to the applicant and two Chief Inspectors referred to as comparators in paragraph 3.11 of the tribunal's decision were not "materially different" within the meaning of article 7 of the Sex Discrimination (Northern Ireland) Order 1976?

    2. Was the tribunal correct in law in holding that the respondent treated the applicant less favourably than they treated or would treat other persons?

    3. Was the tribunal correct in its application of the burden of proof?

    4. Was the tribunal entitled on the facts proved or admitted to hold that the applicant was so treated on the grounds of her sex?

    THE FACTS

  19. The appellant had been a member of the Royal Ulster Constabulary ("the RUC") for twenty two years prior to the events which gave rise to the complaint. Since September 1995 she had held the rank of chief inspector. She was employed in the Traffic Branch of the RUC. The branch was divided into three divisions - North, South and Urban Traffic. The appellant was deputy head of Urban Traffic. Her superior officer was the Superintendent who was in charge of that division. The appellant had worked as deputy to three superintendents before Superintendent Laird became the head of Urban Traffic in February 1997.

  20. The RUC operated a Staff Appraisal Scheme. Clause 3.3 of the scheme provided that all ranks from constables who had completed a year out of probation to superintendents who had been confirmed in rank or appointment were to be appraised. There were two separate stages in this exercise. The first was the preparation of an annual report compiled by the officer's supervisor who was the assessing officer. The second was an interview by a designated senior officer who was the counselling officer. Clause 3.2 of the scheme provided that that the reports would normally be completed by a superintendent as the counselling officer. But by 1997 it had become the established custom and practice, and was endemic within the Force generally, that chief inspectors did the counselling of constables. As the appellant held the rank of chief inspector, it was the practice for her to carry out counselling in respect of all the staff appraisals of constables in Urban Traffic.

  21. In April 1997 Constable Lowens made a complaint to Superintendent Laird about the manner in which the appellant had conducted the appraisal in his case. His complaint was upheld by Superintendent Laird. In September 1997 Constable Currie expressed dissatisfaction about comments which the appellant made in her appraisal about him. After discussion with Superintendent Laird the appellant agreed to delete some words from her report to which Constable Currie had taken exception. But the Constable took his complaint to the Police Federation. The Federation's representatives then asked for a meeting with Superintendent Laird. On 6 October 1997 a long meeting took place between Superintendent Laird and three representatives of the Federation, who were one each from the three ranks of constable, sergeant and inspector. During this meeting the procedures concerning staff appraisals were discussed. Superintendent Laird's evidence to the tribunal was that Constable Currie's appraisal was not discussed at this meeting, although he admitted that there were allusions to recent problems. He denied that the discussion referred directly to the appellant. But the tribunal found that it was probable that her handling of Constable Currie's appraisal was specifically discussed, as this was the background against which the meeting had been sought.

  22. In the course of this meeting Superintendent Laird assured the representatives of the Federation that he would not act contrary to policy or procedures in the conduct of the appraisals. The Federation's representatives then brought the terms of the Staff Appraisal Scheme to his attention, whereupon he accepted that he should follow the letter of the scheme. He promised that henceforth he would do the appraisals, although he said that they would be carried out by the appellant in his absence. It was however already common knowledge that the policy relating to appraisals was to change in December 1997, with the result that from and after that date they were to be undertaken by chief inspectors. On 10 October 1997 the appellant was approached by a civil servant regarding completing staff appraisals. She spoke to Superintendent Laird and suggested that as he was off on the Monday and Tuesday she could do them. But he said that he had given an undertaking to the Federation and arranged to have the appraisals done when he came back.

  23. When Superintendent Laird informed the appellant of the outcome of his meeting with the Federation she immediately expressed her dissatisfaction and annoyance over what she regarded as his failure to stand up to the Federation and resist their demands. She told him that she wished to invoke the grievance procedure, as her colleagues of equal rank in the North and South divisions of the Traffic Branch were still doing the appraisals. She told him that she felt victimised, discriminated against and astounded by what had happened. Superintendent Laird's response to the fact that other chief inspectors were doing appraisals was that they were in other divisions and he was only concerned about what happened in Urban Traffic. In the event the appellant did not formally invoke the grievance procedure. What she did instead was to lodge an application with the industrial tribunal complaining that she had been unlawfully discriminated against on the ground of her sex.

  24. Part II of the Sex Discrimination (Northern Ireland) Order 1976 describes the discrimination to which the Order applies. Article 3(1), which is headed "Sex discrimination against women", provides:

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

    (a)

    on the ground of her sex he treats her less favourably than he treats or would treat a man ....

    Article 7, which is headed "Basis of comparison", provides:

    A comparison of the cases of persons of different sex or marital status under article 3(1) or 5(1) must be such that the relevant circumstances in the one case are the same, or not materially different, in the other.

  25. Part III of the 1976 Order deals with discrimination in the employment field. Article 8(2) provides:

    It is unlawful for a person, in the case of a woman employed by him at an establishment in Northern Ireland, to discriminate against her -

    (a)

    in the way he affords her access to opportunities for promotion, transfer or training, or to any other benefits, facilities or services, or by refusing or deliberately omitting to afford her access to them, or

    (b)

    by dismissing her, or subjecting her to any other detriment.

    THE DECISION OF THE TRIBUNAL

  26. The appellant asked the tribunal to regard the other two chief inspectors in the Traffic Branch as comparators for the purpose of determining whether she had been treated less favourably than a man was or would have been treated. For the respondent it was submitted that neither of them were appropriate comparators. But the tribunal did not accept this submission, as the male officers were of similar rank and were carrying out similar responsibilities in their divisions to those of the appellant and no evidence had been provided that their work was materially different. The tribunal concluded unanimously that the appellant had been unfavourably treated by Superintendent Laird in respect of the appraisals. The question whether this had subjected her to a detriment within the meaning of article 8(2)(b) was not raised at the hearing either by way of evidence or of cross-examination, nor were any submissions directed to it by counsel for either party. The result was that the tribunal did not deal expressly in its decision with the question of detriment. But it appears to have proceeded on the assumption that the appellant had been subjected to a detriment. In paragraph 10 of the case stated it is recorded that the tribunal concluded unanimously that the appellant had been less favourably treated when Superintendent Laird "removed" from her the right to continue to do appraisals on constables.

  27. In paragraph 3.13 of its decision the Tribunal dealt with the remaining issue in the case, which was whether what they described as "the treatment meted out" to the appellant was because she was a woman. The facts which it regarded as relevant to this issue, together with its conclusions, are set out in this paragraph in these terms:

    It was common knowledge that the policy relating to appraisals was to change in December 1997. It was therefore open to the Superintendent to question the Federation as to the need to strictly follow the Force regulations when they were to be changed in less than three months. There did not appear to be any urgent need to change what had become the custom and practice within the Force generally that Chief Inspectors did the counselling of Constables. In addition by the time of the Federation meeting the offending section in Constable Curries' appraisal had been deleted on Superintendent Laird's evidence (sic). If that was so, what was the need for such a meeting, Constable Currie was now satisfied. The only change as a consequence of the meeting was that the applicant had the completion of appraisals taken from her. That seems to have been the prime reason for the meeting. As far as the tribunal are aware, the Federation did not make any further representations within the force with regard to Chief Inspectors doing counselling and the strict compliance with the Regulations.

    The majority of the tribunal were of the opinion that there was sufficient material from which it could reach the opinion that the applicant had been discriminated against on the grounds of her sex. The majority of the tribunal accepted that the changing of what had been the custom and practice regarding the completion of staff appraisals by Chief Inspectors only related to the applicant, and were satisfied that she had been treated differently because she was a woman. The minority member was of the opinion that the less favourable treatment was not because of her gender and was of the opinion that a male Chief Inspector in similar circumstances would have received similar treatment.

    THE JUDGMENT OF THE COURT OF APPEAL

  28. The Court of Appeal dealt first with the issue of detriment. As to what the word "detriment" means in the context of article 8(2)(b) of the 1976 Order, Carswell LCJ approved of the construction of this word which was adopted by the Employment Appeal Tribunal in Lord Chancellor v Coker & Osamor [2001] IRLR 116. It held that it was ejusdem generis with "dismissing" in the same paragraph of the article, so that there had to be some physical or economic consequence as a result of discrimination which was material and substantial to constitute a detriment. The Lord Chief Justice said that this was in accord with the decision of the Court of Appeal in Barclays Bank Plc v Kapur (No 2) [1995] IRLR 87 that an unjustified sense of grievance cannot amount to a detriment. He then said that the tribunal was in error in failing to consider whether the appellant had been subjected to a detriment, and that there was nothing in the evidence which could suffice to found a conclusion that she had suffered a detriment within the meaning of the article. As he put it,

    She did not have a 'right' to carry out appraisals, and it was at most a practice that this work was entrusted to her. There was no loss of rank and no financial consequence when the function was removed from her.

    He said that, on the construction of the word which it considered to be correct, the court was of opinion that no tribunal properly applying the law could conclude that the appellant had suffered a detriment and that this was sufficient to determine the appeal in the respondent's favour.

  29. The court went on however to deal with the issues of less favourable treatment and treatment on grounds of sex. As to less favourable treatment, Carswell LCJ applied the criterion which had been laid down by the Court of Appeal in Chief Constable of the RUC v A [2000] NI 261, 271 for the purposes of unlawful discrimination under section 16(2) of the Fair Employment (Northern Ireland) Act 1976, which was to regard as relevant those circumstances on which a reasonable person would place some weight in determining how to treat another. He said that there were circumstances in the appellant's case that did not apply to the other chief inspectors. Complaints had been made against her about her performance of the appraisal of constables, and representations had been made by the Police Federation about that. In the court's view these were circumstances which no reasonable person could ignore or omit in comparing the appellant with the other chief inspectors. He held that if the tribunal had adopted the correct test it was bound to reach the conclusion that the other chief inspectors were not valid comparators 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.

  30. Carswell LCJ then dealt with the third issue. This was whether the appellant's treatment, if it was different from that of the other officers, was because she was a woman. Adopting the approach set out by Neill LJ in King v Great Britain-China Centre [1992] ICR 516, 528-529 and approved by Lord Browne-Wilkinson in Zafar v Glasgow City Council [1998] IRLR 36, 38-39 and on the hypothesis that the appellant had been treated differently from male officers, he said that the tribunal would have been entitled to consider the possibility of discrimination on the ground of sex and look to the employer for an explanation. He said that that explanation was furnished in the present case by the fact that complaints were made about the appellant's discharge of her duties and the Police Federation made representations about her, and that there was no evidence to be found either in the case stated or in the tribunal's decision which would furnish a basis for a finding that this was on the ground of her sex. On this ground too the Court of Appeal held that the tribunal's decision had to be reversed.

    DETRIMENT

  31. I deal with this point first, as it was on the ground that no tribunal could properly hold that a detriment had been established in this case that the Court of Appeal decided to reverse the tribunal's decision and to dismiss the appellant's complaint. Mr. Morgan QC for the respondent very properly conceded that the court's decision on this point could not stand, in the light of the views which had been expressed subsequently as to the meaning of this word in your Lordships' House in Chief Constable of the West Yorkshire Police v Khan [2001] UKHL 48; [2001] 1 WLR 1947.

  32. Judgment in that case was delivered on 11 October 2001. It arose out of a complaint of victimisation by a police officer contrary to section 2(1)(a) of the Race Relations Act 1976 on the ground that he had been discriminated against because his employer had refused to provide him with a reference. Section 4(2) of that Act, which deals with discrimination in the field of employment, provides:

    It is unlawful for a person, in the case of a person employed by him at an establishment in Great Britain, to discriminate against that employee -

    (a)

    in the terms of employment which he affords to him; or

    (b)

    in the way he affords him access to opportunities for promotion, transfer or training, or to any other benefits, facilities or services, or by refusing or deliberately omitting to afford him access to them; or

    (c)

    by dismissing him, or subjecting him to any other detriment.

    The wording of paragraphs (b) and (c) of that subsection is the same as that in paragraphs (a) and (b) of article 8(2) of the 1976 Order, apart from the words used to indicate the gender of the person discriminated against on the ground of sex. It is plain that the word "detriment" has the same meaning in both contexts.

  33. At p 1951A-B, para 14 in Khan's case Lord Nicholls of Birkenhead said

    I accept Sergeant Khan's claim that the refusal to provide a reference for him constituted a detriment within the meaning of section 4(2)(c) even though, as matters turned out, this did not cause him any financial loss. Provision of a reference is a normal feature of employment.

    Lord Hoffmann also dealt with the question whether, assuming there was discrimination under section 2(1) of the 1976 Act, Mr. Khan was subjected to "detriment" within the meaning of section 4(2)(c). He pointed out, at p 1959G-1960A, that being subjected to detriment (or being treated in one of the other ways mentioned in section 4(2)) is an element of the statutory cause of action additional to being treated "less favourably" which forms part of the definition of discrimination:

    A person may be treated less favourably and yet suffer no detriment. But, bearing in mind that the employment tribunal has jurisdiction to award compensation to injury to feelings, the courts have given the term 'detriment' a wide meaning. In Ministry of Defence v Jeremiah [1980] QB 87, 104 Brightman LJ said that 'a detriment exists if a reasonable worker would or might take the view that the [treatment] was in all the circumstances to his detriment.'

    Lord Mackay of Clashfern also noted, at p 1956F, para 37 that the word "detriment" has been widely defined. He referred to De Souza v Automobile Association [1986] ICR 514. Bingham LJ's observation in Barclays Bank Plc v Kapur [1989] IRLR 387, para 54, that the phrase "subjecting him to any other detriment" in section 4(2)(c) of the Race Relations Act 1976 was to be given its broad, ordinary meaning is consistent with this approach. The decisions in De Souza v Automobile Association and Barclays Bank v Kapur predate the decision of the Court of Appeal in this case, but it appears that its attention was not drawn to these authorities.

  34. The statutory cause of action which the appellant has invoked in this case is discrimination in the field of employment. So the first requirement, if the disadvantage is to qualify as a "detriment" within the meaning of article 8(2)(b), is that it has arisen in that field. The various acts and omissions mentioned in article 8(2)(a) are all of that character and so are the words "by dismissing her" in section 8(2)(b). The word "detriment" draws this limitation on its broad and ordinary meaning from its context and from the other words with which it is associated. Res noscitur a sociis. As May LJ put it in De Souza v Automobile Association [1986] ICR 514, 522G, the court or tribunal must find that by reason of the act or acts complained of a reasonable worker would or might take the view that he had thereby been disadvantaged in the circumstances in which he had thereafter to work.

  35. But once this requirement is satisfied, the only other limitation that can be read into the word is that indicated by Lord Brightman. As he put it in Ministry of Defence v Jeremiah [1980] QB 87, 104B, one must take all the circumstances into account. This is a test of materiality. Is the treatment of such a kind that a reasonable worker would or might take the view that in all the circumstances it was to his detriment? An unjustified sense of grievance cannot amount to "detriment": Barclays Bank Plc v Kapur (No 2) [1995] IRLR 87. But, contrary to the view that was expressed in Lord Chancellor v Coker & Osamor [2001] IRLR 116 on which the Court of Appeal relied, it is not necessary to demonstrate some physical or economic consequence. As Lord Hoffmann pointed out in Khan's case, at p 1959, para 52, the employment tribunal has jurisdiction to award compensation for injury to feelings whether or not compensation is to be awarded under any other head: Race Relations Act 1976, section 57(4); 1976 Order, article 66(4). Compensation for an injury to her feelings was the relief which the appellant was seeking in this case when she lodged her claim with the tribunal. Her complaint was that her role and position had been substantially undermined and that it was becoming increasingly marginalized.

  36. The question then is whether there was a basis in the evidence which was before the tribunal for a finding that the treatment of which the appellant complained was to her detriment or, to put it more accurately as the tribunal did not make any finding on this point, whether a finding that the appellant had been subjected to a detriment could reasonably have been withheld.

  37. It is clear that the treatment of which the appellant complains was in the field of her employment. The practice by which she did the appraisals of constables as part of her job in the Urban Traffic Branch had been terminated. As for the question whether a reasonable person in her position might regard this as a detriment, the background is provided by the fact that not only was it the practice for the appraisals to be done by the chief inspectors but this was, as the tribunal put it, endemic in the Force. There was evidence that the appellant had carried out as many as thirty five appraisals since she was promoted to the rank of chief inspector. Once it was known, as it was bound to be, that she had had this part of her normal duties taken away from her following a complaint to the Police Federation, the effect was likely to be to reduce her standing among her colleagues. A reasonable employee in her position might well feel that she was being demeaned in the eyes of those over whom she was in a position of authority. The tribunal did not make an express finding to that effect, but there was material in the evidence from which this conclusion could be reasonably be drawn. The respondent did not lead any evidence to the contrary, so he is in no position to resist the drawing of these inferences from the evidence. In my opinion the appellant was entitled to a finding that she was subjected to a detriment within the meaning of article 8(2)(b).

    LESS FAVOURABLE TREATMENT

  38. The background to this part of the case is provided by article 3(1)(a) of the 1976 Order, which applies where in any circumstances relevant for the purposes of any provision of the Order a person treats a woman on the ground of her sex "less favourably" than he treats or would treat a man, and by article 7, which provides that a comparison of the cases of persons of different sex under article 3(1) must be such that the relevant circumstances in the one case are the same, or not materially different, in the other.

  39. The obvious questions which these provisions raise are: with whom should the comparison be made, and which circumstances are to be considered as relevant: see Daniel Peyton, Sex and Race Discrimination, para 3.2.5. But these issues are by no means straightforward. As Sandra Fredman, Discrimination Law, pp 96-99, has explained, the need for a comparator has been one of the most problematic and limiting aspects of direct discrimination as defined in the legislation about discrimination on grounds of sex and race. The requirement is less harsh than in the legislation about equal pay, as the provisions about discrimination on grounds of sex and race permit a "hypothetical" comparison, based - in a sex case, for example - on the question how the woman "would" be treated if it is not possible to find an actual comparator. Nevertheless the choice of comparator requires that a judgment must be made as to which of the differences between any two individuals are relevant and which are irrelevant. The choice of characteristics may itself be determinative of the outcome: see Advocate General v MacDonald 2001 SC 1 and Pearce v Governing Body of Mayfield School [2001] EWCA Civ 1347; [2002] ICR 198. This suggests that care must be taken not to approach this issue in a way that will defeat the purpose of the legislation, which is to eliminate discrimination against women on the ground of their sex in all the areas with which it deals.

  40. Ms McGrenera QC for the appellant submitted that the correct approach in this case was that described by Lord Nicholls of Birkenhead in Chief Constable of the West Yorkshire Police v Khan [2001] 1 WLR 1947, 1953D-1954B, paras 25-27. The approach which Lord Nicholls favoured was that which had been adopted in Aziz v Trinity Street Taxis Ltd [1989] QB 463, 480B-483F, in which the judgment of the court was delivered by Slade LJ. Those were victimisation cases. They were not concerned with the issue of direct discrimination. As Lord Nicholls explained at p 1951C-D, para 16, the primary object of the victimisation provisions is to ensure that persons are not penalised or prejudiced because they have taken steps to exercise their rights under the legislation or are intending to do so. Article 4 of the Order, which corresponds to section 2(1) of the Race Relations Act 1976 with which those cases were concerned, defines discrimination by way of victimisation. This arises where a person discriminates against another person in any circumstances relevant for the purposes of any provision of the Order "if he treats the person victimised less favourably that in those circumstances he treats or would treat other persons, and does so by reason that the person victimised has" done or intends to do one or other of a number of things, commonly referred to as "protected acts". Lord Nicholls said, at p 1954A, para 27, that the statute was to be regarded as calling for a simple comparison between the treatment afforded to the complainant who has done a protected act and the treatment which was or would be afforded to other employees who have not done the protected act. On this approach the reasons for the difference in treatment are not to be taken into account at this stage. The stage at which they are brought into account is at the stage when the tribunal is considering why the employer afforded less favourable treatment to the employee.

  41. In Kirby v Manpower Services Commission [1980] 1 WLR 725, where a clerk who had been moved to another job after giving away confidential information complained of victimisation under section 2 of the Race Relations Act 1976, Slynn J delivering the judgment of the Employment Appeal Tribunal said at p 733E that the right question was whether people who gave away information which was received in confidence would be treated by the employer on broadly the same basis. In Aziz v Trinity Street Taxis Ltd [1989] QB 463 Slade LJ said that this was not the right test for resolving the question whether the complainant had been treated less favourably. The complainant in that case had been deprived of his membership of an organisation of taxi drivers, which was an organisation of workers within the meaning of section 11(1) of the Race Relations Act 1976. His case was that this was an act of victimisation, contrary to sections 2 and 11(3)(b) of the Act and his argument, which Slade LJ accepted, was that in the context of that case the "relevant circumstances" referred simply to the complainant's membership of the organisation. As he explained at p 482G-H, the relevant circumstances are assumed to subsist at the time when the treatment complained of occurs. So the fact that the complainant was expelled from the organisation, which was the treatment complained of, was in itself not a relevant circumstance. But at p 482H-483F Slade LJ also excluded the reasons which the organisation gave for the expulsion. He said that this was something to be considered at the next stage, which is directed to what he described as the issue of causation. The question at the initial stage was simply whether the organisation had treated the complainant less favourably than it treated or would have treated other persons by expelling him from membership. The only circumstance which was relevant to the issue whether he was treated less favourably for the purposes of sections 2 and 11(3)(b) of the Act was the fact that he was a member of the organisation.

  42. The control group which the appellant selected in the present case comprised the other chief inspectors in the employment of the RUC. Ms McGrenera maintained that they were the appropriate persons with whom to make the comparison. In the appellant's case the employer's practice whereby appraisals were carried out by chief inspectors was terminated. She says that she was less favourably treated than the other chief inspectors, who were of the same rank and were serving in the same branch of the police force, because the practice was allowed to continue in their case. There were two important differences. The first is that the other chief inspectors were serving in other divisions of the Traffic Branch over which Superintendent Laird had no managerial responsibility. The second is that in her case but not in theirs there had been complaints and representations. But the appellant's argument, relying on what Lord Nicholls said in Chief Constable of the West Yorkshire Police v Khan [2001] 1 WLR 1947, is that these are "reason why" points. The crucial question is whether this truly was the reason why she was treated less favourably, or whether she was treated less favourably than the men were on the ground of her sex. As to the prior question, which is whether the complainant was treated less favourably, the appellant's case is that the fact that the other chief inspectors were in different divisions and that complaints and representations were made in her case and not in theirs should be disregarded as these are not to be treated for this purpose as relevant circumstances.

  43. The respondent maintains that the question of less favourable treatment must be addressed on the basis that the circumstances of the comparators were the same, or not materially different, from those of the appellant. On his approach, article 7 requires there to be brought into account not only the fact that the other chief inspectors were serving in different divisions over which Superintendent Laird had no responsibility but also the fact that it was in the appellant's case only that complaints had been made and in her case only that representations had been made by the Federation. He submits that it is clear that, when regard is had to these facts, the other chief inspectors were not valid comparators at all. This was the approach taken by the Court of Appeal. It concluded that, because the relevant circumstances of the other chief inspectors were not the same as those of the appellant, her case was bound to fail. This was because she was unable to show that her employer treated her less favourably than he had treated a man in the same employment whose circumstances were the same as, or not materially different from, hers.

  44. I confess that I was for a long time attracted by the argument that the test for direct discrimination which article 3(1)(a) lays down can be divided up into two distinct parts, and that the circumstances which are to be considered relevant to the issue raised by the phrase "treats her less favourably" do not include circumstances which are or may be relevant to the question why the woman was treated differently. But, on further examination of the language of the Order, I am persuaded that article 3(1) does not permit this approach.

  45. Aziz v Trinity Street Taxis Ltd [1989] QB 463 and Chief Constable of the West Yorkshire Police v Khan [2001] 1 WLR 1947 were, as I have said, cases about discrimination by way of victimisation. As Slade LJ was careful to stress in Aziz at p 476B, the form of discrimination alleged in that case was not discrimination within the meaning of section 1(1) of that Act (the equivalent of article 3(1) of the Order). It was the form of discrimination described as victimisation in section 2 (the equivalent of article 4 of the Order). These two forms, as Slade LJ said, are "quite different." Lord Nicholls, too, explained in Khan at p 1951H, para 18, that he was addressing difficulties which had arisen in the application of the definition of victimisation. He did not address the issues raised by the definition of direct discrimination.

  46. The language of article 3(1) and of article 4 is sufficiently similar to enable the same approach to the exercise of comparison to be adopted in each case. The phrase "in any circumstances relevant for the purposes of any provision of this Order" appears in both. And they both use the expression "treats .... less favourably", which requires a comparison to be made as to how the person treats, or would treat, the person who is said to have been discriminated against or victimised. As against that, there is the obvious point that article 7, which lays down the rule that a comparison of the cases "must be such that the relevant circumstances in the one case are the same, or not materially different, in the other," states that it applies to a comparison under article 3(1) but omits to mention article 4. But I agree with my noble and learned friend Lord Nicholls of Birkenhead that there is no reason in principle why the two comparison exercises should differ in their nature. The rule which article 7 lays down appears to be the same as that which any sensible person would apply when undertaking any exercise by way of a comparison. It appears simply to be requiring that one must compare like with like. If that is so for the purposes of article 3(1), why should it not be so for the purposes of article 4?

  47. But the crucial point is that questions to which the "like with like" test is to be applied differ as between these two articles. Article 4, as to victimisation, then lays down a test which falls naturally into two parts. The first part of the test requires an exercise by way of a comparison. This is the less favourable treatment part. It is satisfied if the discriminator treats the person victimised less favourably "than in those circumstances" he treats or would treat other persons. The circumstances which are relevant to this exercise are those described in the provision of the Order, previously referred to in the opening words of the article, which describe the circumstances in which discrimination is unlawful. The second part deals with the reason for that treatment. This part does not involve any comparison at all. What it requires is proof that the treatment complained of was "by reason of" a protected act. A precise list of the things that are protected is then set out in subparagraphs (a) to (d) of the article. It is in that context that a judgment is required, and was made in Aziz and Khan, as to what the circumstances are which must be brought into account for the purposes of the comparison which has to be made under the first part of the article.

  48. The structure of article 3(1)(a), on the other hand, is quite different. What it requires is proof that the alleged discriminator treated the woman less favourably on the ground of her sex. The words "than in those circumstances" which define the scope of the comparison required in article 4 are absent. Instead the direction which is set out in article 7 must be applied. It provides that the comparison must be such that "the relevant circumstances" in the one case are the same, or not materially different, in the other. The reason why article 7 does not say that the basis of comparison which it lays down must be applied to a comparison under article 4 is because article 4 itself sets out the basis for the comparison which it requires. It does so by directing attention to the circumstances mentioned in the opening words of the article. This is a narrower basis than that required of article 3 by the phrase "the relevant circumstances" in article 7. The circumstances referred to in this phrase are not just those mentioned in the opening words of article 3. They go much wider than that. The phrase directs attention to all the circumstances which are relevant to the way in which the woman has been treated. Moreover, there is no need to break this test down into two parts. It is, as Lord Nicholls has said, in essence a single question. The comparison which is invited by the words "treats her less favourably" lies at the heart of the entire subparagraph.

  49. It is, I think, open to question whether the issue of less favourable treatment should be examined separately from the third issue with which the tribunal dealt under article 3(1)(a), which was whether the treatment which the appellant received was "on the ground of her sex". The third issue is the primary question. It directs attention to the question why the claimant was treated as she was. It calls for an examination of all the facts. If the two issues are to be examined separately, it may be helpful for this question to be addressed first. But, whichever approach is adopted, one must not lose sight of the fact that article 3(1) must be read as a whole and that it must be read together with article 7. A comparison of the cases of persons of a different sex under article 3(1)(a) must therefore be such that all the circumstances which are relevant to the way they were treated in the one case are the same, or not materially different, in the other.

  50. The crucial point, then, is this. The application of the rule in article 7 cannot be avoided by breaking article 3(1)(a) down into two parts. This is because this rule applies to article 3(1) as whole. The language of the Order does not permit circumstances which have to be taken into account for one part of article 3(1)(a) to be ignored when the exercise of comparison which the article requires is being applied to the other part. The relevant circumstances must be taken to be the same for both parts of the article, even if these two parts are considered separately.

  51. For these reasons I am in agreement with the Court of Appeal that, as the facts of their case were different from that of the appellant, the other chief inspectors were not, on their own facts, valid comparators. I also agree that the tribunal, which appears to have proceeded on the basis that they were, misdirected itself on this point. But I think that the Court of Appeal were wrong not to acknowledge that the issue of less favourable treatment can be examined hypothetically, as is indicated by the words "or would treat" in article 3(1)(a). Carswell LCJ said that the court was following the approach which he had described in Chief Constable of the Royal Ulster Constabulary v A [2000] NI 261, where he said:

    To make out a case under section 16(2)(a) of the 1976 Act a complainant has to show that the respondent has treated him 'less favourably than he treats or would treat other persons.' In the absence of evidence of a regular way in which other persons in the same circumstances are treated, he has to prove that at least one other person in comparable circumstances has been treated differently, which may tend to show how others would have been treated if they and not the complainant had been concerned.

    In other words, as there was - to apply this formula to the facts of this case - no other chief inspector against whom complaints had been made or about whom representations had been made by the Police Federation, the appellant was bound to fail in her claim that she had been discriminated against. The Court of Appeal held that the appellant's case was bound to fail for the lack of a valid comparator, as she was unable to show that at least one other chief inspector who was in the same position in all respects as she was had been treated differently.

  52. The requirement that it must be shown that at least one other person whose circumstances were in fact comparable to those of the complainant was treated differently introduces a step into the exercise which is not found in the legislation. The way the case was argued for the appellant may have invited this approach, as her case depended on accepting the other chief inspectors as valid comparators. But I do not think, with great respect, that this can be regarded as a rule which must be applied in all cases. There could be cases where the position held by the complainant was the only one of its kind and incapable of being compared with that held at the relevant time by anyone else in the employer's organisation. The words "or would treat" in article 3(1) of the Order permit the question whether there was discrimination against a woman on the ground of her sex to be approached on a hypothesis. The crucial question is whether there was discrimination, and it would defeat the purpose of the Order if this question could not be addressed simply because the complainant was unable to point to anyone else who was in fact in the same position as she was. Isolated or unique cases would be left without the protection which the legislation is designed to provide. The flaws which I detect in the Court of Appeal's reasoning lie in its assumption that it was necessary for the appellant to show, as part of the relevant circumstances, that there were in fact other chief inspectors over whom Superintendent Laird had responsibility in whose case too there had been complaints and representations and in its conclusion that, because she had not done this, her case must necessarily fail.

  53. The approach to the various questions raised by article 3(1)(a) which seems to me to be best suited to the circumstances of this case, on its own facts, is this. It is to regard the male chief inspectors in the Traffic Branch and the work they did as a starting point, but no more than a starting point, for the comparison which is invited by the wording of the article. The position of the two male chief inspectors was directly comparable with the appellant's position in at least three respects that were directly relevant to hers. They were of the same rank, they were serving in the same branch (although not in the same division) and they too had been carrying out staff appraisals in accordance with the recognised custom and practice in the force. The appellant had been deprived of this part of her work which the male chief inspectors were continuing to do. The next step is to consider, hypothetically, whether the appellant was treated less favourably than they would have been if the complaints had been made against them and representations had been made by the Police Federation in their case and if they too had been serving in the division for which Superintendent Laird was responsible.

  54. The respondent's case is that the reason for the difference in treatment is that in the appellant's case there were complaints and representations. The vital question, to which I now turn, is whether this truly is the reason why she was treated as she was by her employer or whether, as the appellant alleges, the difference in treatment was on the ground of her sex. Article 3(1)(a), as I have said, permits this question to be approached hypothetically. Let it be assumed that the other chief inspectors - the hypothetical comparators - were in the same division and the subject of the same complaints and representations as the appellant, so that the only difference between them and the appellant is that they were all men. The question is whether the way in which the appellant was in fact treated was different from the way the other chief inspectors would have been treated if they too were persons over whom Superintendent Laird had responsibility and the complaints and representations had been directed against them. If the answer to that question is yes, and there is no other explanation, it can be inferred that she was treated less favourably than they would have been on the ground of her sex.

    ON THE GROUND OF HER SEX

  55. Claims brought under the legislation about discrimination present special problems of proof for applicants, as Lord Browne-Wilkinson pointed out in Zafar v Glasgow City Council [1998] IRLR 36, 38-39, para 16. As he said in that case, those who discriminate on grounds of race or gender do not in general advertise their prejudices. They may indeed not even be aware of them. It is unusual to find direct evidence of an intention to discriminate. So the outcome in a case of this kind will usually depend on what inferences it is proper to draw from the primary facts found by the tribunal. In Nagarajan v London Regional Transport [2000] 1 AC 501, 511A-B Lord Nicholls of Birkenhead said that, save in obvious cases, this question will call for some consideration of the mental processes of the alleged discriminator:

    Treatment, favourable or unfavourable, is a consequence which follows from a decision. Direct evidence of a decision to discriminate on racial grounds will seldom be forthcoming. Usually the grounds of the decision will have to be deduced, or inferred, from the surrounding circumstances.

  56. The approach which should be taken to the evidence was explained by Neill LJ in King v Great Britain-China Centre [1991] ICR 516, 528-529:

    (4)

    Though there will be some cases where, for example, the non-selection of the applicant for a post or for promotion is clearly not on racial grounds, a finding of discrimination and a finding of a difference in race will often point to the possibility of racial discrimination. In such circumstances the tribunal will look to the employer for an explanation. If no explanation is then put forward or if the tribunal considers the explanation to be inadequate or unsatisfactory, it will be legitimate for the tribunal to infer that the discrimination was on racial grounds.

    That was a case of racial discrimination, but the approach which Neill LJ described is equally capable of being applied where the allegation is that the discrimination was on the ground of sex.

  57. In this case the appellant was, as I have said, entitled to a finding that she was treated less favourably than the male chief inspectors. In other words, she had been discriminated against and she was a woman while they were men. It cannot be said that the discrimination was clearly not on the ground of her sex. There was no evidence to that effect. The tribunal say in paragraph 3.11 that there was no evidence that the work of the male chief inspectors was materially different from hers. So this was a case where it was for the employer to provide an explanation. The evidence on which the respondent relied for the explanation was the evidence of Superintendent Laird. If the tribunal was of the view that his explanation was inadequate or unsatisfactory, it was open to it to infer that the discrimination was on the ground of the appellant's sex.

  58. The Court of Appeal said that the conclusion of the majority of the tribunal set out in paragraph 3.13 of its decision was unsupportable and that no reasonable tribunal could have reached such a conclusion on the evidence which it set out. The reasons why the majority felt able to conclude that the appellant had been treated differently because she was a woman are clearly vulnerable to this criticism, as the tribunal appears to have proceeded on the basis that the other chief inspectors could be treated as valid comparators. The conclusions of the majority and of the minority member are set out, but no explanation is given as to why they reached different views after reviewing the evidence.

  59. An appellate court should hesitate before it decides to reverse the decision of the tribunal on a matter of this kind. The question which was at issue here was a question of fact, and the tribunal had the advantage of seeing and hearing the witnesses. In a case such as this, where direct evidence of discrimination is absent and so much depends on inference, this is a crucial advantage which the appellate court does not share. It has also been recognised that a generous interpretation ought to be given to a tribunal's reasoning. It is to be expected, of course, that the decision will set out the facts. That is the raw material on which any review of its decision must be based. But the quality which is to be expected of its reasoning is not that to be expected of a High Court judge. Its reasoning ought to be explained, but the circumstances in which a tribunal works should be respected. The reasoning ought not to be subjected to an unduly critical analysis.

  60. There are several indications in the decision that the tribunal was dissatisfied with Superintendent Laird's evidence. He contended that neither Constable Currie nor the appellant were mentioned directly during the discussions at his meeting with the Federation and that they were only alluded to. But the tribunal concluded in paragraph 3.8 that it is highly probable that they were discussed at that meeting. In paragraph 3.12 several options other than the course which was actually taken by Superintendent Laird are set out. He could have asked the Federation whether they were proposing to take the issue about appraisals up with the Force generally or sought further guidance or checked with other regions as to what his response should be before acting in the appellant's case. He did not raise the matter at the monthly meetings of senior officers, and he acted without delay although it was common knowledge that the procedures were to be changed in December. The tribunal declined to hold that the Police Federation was discriminating against the appellant, as it was not a party to the proceedings. But the fact was, as the tribunal point out in paragraph 3.12, that it did not make the same representation that the strict letter of the rules about staff appraisals should be followed in the case of male chief inspectors in the traffic regions. Although the tribunal do not say this in terms, it must have been obvious to Superintendent Laird that the appellant was being singled out in this respect. It appears that the tribunal was of the opinion that he was being less than frank when he was giving his explanation.

  61. The discussion of these points by the tribunal is brought to a head in the first of the two paragraphs which I have quoted from paragraph 3.13. As I read this paragraph, it attempts to set out the basis for the inference which the majority felt able to draw that the appellant had been discriminated against on the ground of her sex. In summary, the following points are made. It was open to Superintendent Laird to stand up to the Federation's representatives and resist the demand for strict compliance with the rules. The policy was to be changed in a few weeks' time, and the complaint by Constable Currie had already been dealt with as the offending passage had been deleted from his appraisal and he was satisfied. What then was the need for the meeting or for the practice which everyone had been following up to now to be changed? The appraisals were taken away from the appellant without delay or consultation, but they were not taken away from the chief inspectors who were men.

  62. It would not have been in the least surprising if, in the light of this background, Superintendent Laird had conceded that he gave in to the Federation more readily than he would have done in the case of the male comparators because the appellant was a woman. Of course he did not make that concession. But one must bear in mind the fact, which Lord Browne-Wilkinson alluded to in Zafar v Glasgow City Council [1998] IRLR 36, that men in his position do not advertise their prejudices and may indeed not even be aware of them. Lowry LCJ was making the same point in Wallace v South Eastern Education & Library Board [1980] IRLR 193 when he said:

    Only rarely would direct evidence be available of discrimination on the ground of sex; one is much more often left it infer discrimination from the circumstances. If this could not be done the object of the legislation would be largely defeated so long as the authority alleged to be guilty of discrimination made no expressly discriminatory statements.

    I think that it would have been open to the tribunal to draw that inference.

    CONCLUSION

  63. But was this the basis for the decision by the majority? I have not found this an easy question to answer. In the end, however, I have been persuaded for the reasons given by my noble and learned friend Lord Hutton that the failure by the majority to explain why they took the view they did is a fatal defect. The fact that there was a division of opinion in the tribunal made it all the more necessary for a clear explanation to be given in the findings of fact for the decision which they reached. But the tribunal's findings of fact do not point decisively to the conclusion that Superintendent Laird's decision was discriminatory. In the absence of such findings the basis for the majority's decision is left to conjecture and there are tenable grounds for thinking that, when all the facts are taken into account, it was wrong. The only explanation which is given by the majority is that they accepted that it was only in the appellant's case that the custom and practice regarding the appraisals by chief inspectors was changed, and that they were satisfied that she was treated differently because she was a woman. The first of these propositions was not disputed. But what was the factual basis for saying that this was because of the appellant's sex? Perhaps because of the error into which the tribunal had fallen of thinking that the other chief inspectors could be treated as valid comparators, the majority appear to have overlooked the fact that, as the circumstances of the other chief inspectors were not the same as those of the appellant, it was necessary to approach this question hypothetically. It was not enough simply to point to the fact that she was treated differently from the way the other chief inspectors were treated. But there is no indication in the reasoning of the majority that any consideration was given to the question how they would have been treated, on the assumption that their circumstances were the same as those of the appellant in all respects. There is a gap here in the majority's reasoning which the findings of fact cannot fill.

  64. That being so, although I am unable to agree with every step in the Court of Appeal's reasoning, I respectfully agree with the result which it reached which was that the conclusion of the majority is unsupportable on the facts and that the decision of the tribunal should be reversed.

  65. The Court of Appeal answered questions 1, 2 and 4 of the questions posed in the case stated in the negative and declined to answer question 3. All these questions proceed upon assumptions about what the tribunal decided. As the basis for the decision is so lacking in explanation, I think that the better course would be to decline to answer any of them. I would dismiss the appeal.

    Lord Hutton

    My Lords,

  66. The principal question which arises on this appeal is whether Superintendent Laird discriminated against the appellant on the ground of her sex when he removed from her the role of counselling officer in the appraisals of constables in the Urban Traffic Branch of the Royal Ulster Constabulary ("the RUC"). This question is to be determined in accordance with the provisions of Article 3(1)(a) and Article 7 of the Sex Discrimination (Northern Ireland) Order 1976.

  67. Article 3 provides:

    (1)

    A person discriminates against a woman in any circumstances relevant for the purposes of any provision of this Order if—

    (a)

    on the ground of her sex he treats her less favourably than he treats or would treat a man.

    Article 7 provides:

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

  68. Section 1 of the Race Relations Act 1976 provides:

    (1)

    A person discriminates against another in any circumstances relevant for the purposes of any provision of this Act if—

    (a)

    on racial grounds he treats that other less favourably than he treats or would treat other persons.

    In Zafar v Glasgow City Council [1998] IRLR 36, 38 Lord Browne-Wilkinson observed:

    Although, at the end of the day, s.1(1) of the Act of 1976 requires an answer to be given to a single question (viz has the complainant been treated less favourably than others on racial grounds?), in the present case it is convenient for the purposes of analysis to split that question into two parts— (a) less favourable treatment, and (b) racial grounds - as did the Second Division.

  69. Article 3(1)(a) of the Sex Discrimination (Northern Ireland) Order 1976 and section 1(1) of the Race Relations Act 1976 are somewhat different in their practical application, because if an employer treats a female employee less favourably than he treats or would treat a male employee, it is often implicit in such treatment that it takes place on the ground of her sex, whereas an employer may well treat an employee less favourably than he treats or would treat other employees for reasons other than race. This difference emphasises the importance of bearing in mind that, in essence, Article 3(1)(a) of the Northern Ireland Order requires an answer to be given to a single question. I further consider that making too rigid a distinction between the question—

    1. has there been less favourable treatment and

    2. if so, has it been on the ground of sex, has tended to create difficulties in deciding who are the appropriate comparators in particular cases.

    However I recognise that the splitting of the question into two parts has been done in many cases and has certain advantages for the purposes of analysis, and therefore I am content to consider the present case under these two heads.

    LESS FAVOURABLE TREATMENT

  70. The determination of this issue requires a comparison to be made between the case of the appellant and the case of an actual, or hypothetical, male officer in the RUC. It is clear that the tribunal considered that the Chief Inspectors in the other regions of the Traffic Branch were proper actual comparators, because they stated in paragraph 3.11 of their decision:

    3.11

    The applicant's comparators were the Chief Inspectors in the other regions. The Federation never raised any objection to any other Chief Inspector doing appraisals. Mr. Grant submitted that neither of these Chief Inspectors were appropriate comparators. The tribunal do not accept this submission and are of the opinion that the comparators came within the terms of Article 7 Sex Discrimination (Northern Ireland) Order 1976. The Chief Inspectors were in Traffic Branch holding similar rank and carrying out similar responsibilities in their regions as to the applicant. No evidence was provided that their work was materially different from that of the applicant.

  71. Article 7 requires that in comparing for the purposes of Article 3(1)(a) the case of the female complainant and the case of a male comparator, actual or hypothetical, the relevant circumstances in the one case must be the same, or not materially different, in the other. Therefore the question which arises is whether the decision of the tribunal that the Chief Inspectors in the other regions of the Traffic Branch were proper comparators complies with the requirements laid down in Article 7. Article 7 directs attention to the relevant circumstances in the complainant's case. What are the relevant circumstances in a particular case will obviously depend upon the facts of that case, and in order to determine the relevant circumstances in the present case I think it is desirable to set out in full the paragraphs of the tribunal's decision describing the way in which the appellant carried out her role as a counselling officer in appraisals and the complaints of Constable Lowens and Constable Currie about her comments on them, and Superintendent Laird's subsequent meeting with representatives of the Police Federation:

    3.3

    She said the first indication that Superintendent Laird was not happy with the manner in which she conducted appraisals arose in April 1997 in relation to Constable Lowens. In that case Superintendent Laird upheld a complaint by the Constable regarding the assessment.

    The next problem arose in respect of Constable Currie's appraisal in September 1997. The reporting officer was Inspector Foster and the applicant was the counselling officer. She was unhappy about several matters in the report and expressed disappointment having regard to the length of time Constable Currie was in Urban Traffic. It was clear that he had problems but was not willing to discuss them with her. In her general comments she made a reference to drawing an analogy between him and the person "who won't give the reason for poor performance caused by drink, unless he admitted he was an alcoholic then it couldn't be classed as a disease". Although Constable Currie originally signed the appraisal, it soon became evident that he was unhappy about the reference to 'alcoholic' by the applicant. Constable Spratt, who was the Constable's representative on the Police Federation and also Vice Chairman of the Federation, came to Superintendent Laird and complained on behalf of Constable Currie. Although the Superintendent understood what the Chief Inspector was referring to, he thought it was only fair to the Constable to have the words deleted. He discussed the matter with her and although she was unhappy she said "if it keeps him happy, take it out". At this stage the Superintendent considered the matter finished.

    3.4

    The applicant said there were rumours in the Branch that Constable Currie had gone to a solicitor. Although the applicant's evidence was that a letter had been received and she had seen it on Superintendent Laird's desk, the tribunal accept that the rumour only extended to the fact that Constable Currie was going to see a solicitor. No letter from a solicitor existed. Constable Currie did complain to the Federation and the Federation asked for a meeting with the Superintendent.

    3.5

    The Federation, represented by Inspector Foster, Sergeant Wilson and Constable Spratt, met with the Superintendent on 6 October. They had indicated they wanted a meeting regarding staff appraisals. Superintendent Laird's evidence was that Constable Currie's appraisal was not directly referred to, although he admitted there were illusions (sic) to recent problems. He also denied that the discussion directly referred to the applicant, notwithstanding the reference to recent problems.

    3.6

    Prior to the Federation meeting Superintendent Laird had spoken to the applicant regarding the proposed meeting. Her view was that they were up to something and he should not give them an inch and that Constable Spratt was "too big for his boots". The applicant's journal entry for 9 October clearly shows that she wanted the Superintendent to take a strong line with the Federation representatives. She notes that "my worst fears have been realised, he had indeed wavered at my expense. I was very disappointed in him." Despite the importance of the Federation meeting with the Superintendent, he made no mention of it in his journal.

    3.7

    There was a conflict of evidence regarding what happened afterwards. The applicant said that she had to probe the Superintendent as to what had happened at the meeting and that he gave a vague reply that it went alright. When she asked him about the staff appraisal issue his reply was that "from now on I will be doing them".

    The Superintendent's recollection is that he sought out the applicant to acquaint her with what had taken place. He told her that he had agreed with the Federation that in future he would do the staff appraisals although she would be entitled to do them when acting-up on his behalf. He said the applicant was angry and annoyed that he had conceded the point with the Federation. He admitted that the applicant mentioned that the Chief Inspectors in the other regions were still doing appraisals and that it was common practice throughout the Force. His response was, that may be the case but he was only concerned with what happened in Urban Traffic and he wished to maintain good relations with the Federation.

    3.8

    The Superintendent's meeting with the Federation lasted somewhere in the region of two hours. They asked him regarding his policy on staff appraisals and he assured them that he was not going to break policy or procedures and will be using the present system to its best advantage. At this point Constable Spratt said "did he realise that he was the one responsible for counselling constables?". Constable Spratt referred him to the Force Regulations. Superintendent Laird admitted that he did not have knowledge of the precise regulations and asked for a copy. The tribunal were referred to paragraph 3.2 which provided that reports would normally be done by those listed and the counselling officer for Constables was Superintendent. He said Constable Spratt was clearly right and he realised the strict letter was not being followed. In these circumstances he considered he had to agree to amend the practice as it was highly important to retain a good honour bound (sic) and trustworthy relationship with the Federation. The Superintendent said the agreement with the Federation was that he would do the appraisals but in his absence the Chief Inspector would do them.

    Although the Superintendent contended that Constable Currie and the applicant were not named directly during discussions and were only alluded to at the meeting, the tribunal would accept that it was highly likely that they were discussed as it was put to the applicant in cross-examination that she knew very well "it is you they came to Superintendent Laird about". If that was the case it is highly probable that she was discussed at the meeting.

    In paragraph 3.12 the tribunal made the following observations:

    3.12

    The delegation to Superintendent Laird was made up of representatives from each rank in Urban Traffic. Constable Spratt, as Vice Chairman of the Federation, would clearly have been there in a dual role. Superintendent Laird's evidence was that they came to speak to him regarding the appraisals. However the tribunal can only infer that the reason for the meeting was the disagreement over Constable Currie's appraisal and the applicant's comment on that appraisal regarding alcohol. Superintendent Laird's evidence was that he had already deleted the disputed sentence from the appraisal before the meeting with the Federation and his decision to do so was not influenced by the Federation. This may be so; however the meeting with the Federation was on 6 October and Constable Currie's appraisal as amended was signed by the Superintendent on 9 October.

  72. On the facts set out in paragraphs 3.3-3.8 and having regard to the observations made in paragraph 3.12, it appears to be a reasonable inference that the reason why Superintendent Laird decided to take away from the appellant the completion of appraisal reports on constables in the Urban Traffic Branch was because she had made appraisals of two constables (which included the unfortunate analogy to an alcoholic in the appraisal of Constable Currie) which had given rise to complaints by them (in the case of Constable Currie his complaint being conveyed through his representative on the Police Federation) and the complaints had been upheld by Superintendent Laird. The Police Federation had then asked for a meeting and, as the tribunal stated in paragraph 3.12, the reason for the meeting was the disagreement over Constable Currie's appraisal and the appellant's comment on that appraisal regarding alcohol. These facts appear to provide an obvious explanation as to why Superintendent Laird decided to remove the task of completing appraisal reports from the appellant.

  73. Therefore I consider that the facts of the complaints made about the appellant and the concern of the Police Federation are clearly relevant circumstances in her case and that it is not in compliance with Article 7 to compare her case with the case of a male Chief Inspector against whom no complaints had been made as to the way in which he carried out his appraisal duties.

  74. Section 1 of the Race Relations Act 1976 provides:

    (1)

    A person discriminates against another in any circumstances relevant for the purposes of any provision of this Act if—

    (a)

    on racial grounds he treats that other less favourably than he treats or would treat other persons ....

  75. In relation to discrimination by way of victimisation section 2 of the 1976 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, or ....

    Article 6 of the Sex Discrimination (Northern Ireland) Order 1976 which relates to discrimination by way of victimisation is in similar terms. Section 3(4) of the Race Relations Act 1976 provides:

    A comparison of the case of a person of a particular racial group with that of a person not of that group under section 1(1) must be such that the relevant circumstances in the one case are the same, or not materially different, in the other.

    This subsection is in similar terms to Article 7 of the 1976 Northern Ireland Order.

  76. Aziz v Trinity Street Taxis Ltd [1989] QB 463 and Chief Constable of the West Yorkshire Police v Khan [2001] 1 WLR 1947 were both cases in which the complainant alleged discrimination by way of victimisation. In those cases it was held that the circumstances referred to in section 2(1) of the Race Relations Act 1976 do not include the circumstances giving rise to the treatment complained of, such as the termination of the complainant's membership of an association or the termination of his employment. The reason for the meaning given to the word "circumstances" in Aziz and Khan was explained by my noble and learned friend Lord Scott of Foscote in Khan at page 1963B as follows:

    70.

    In the submissions to your Lordships various comparators were suggested.

    71.

    One suggestion was that the treatment accorded to Sergeant Khan should be compared to the treatment that would have been accorded to other officers of the West Yorkshire Police who had brought discrimination proceedings against their employers. This cannot be right. It would enable an employer to justify victimising an employee who had brought proceedings under the Act by asserting that he would similarly victimise every employee who brought proceedings under the Act.

    72.

    Another suggestion was that the treatment accorded to Sergeant Khan should be compared to the treatment that would have been accorded to other officers who had brought employment related proceedings, but not race discrimination proceedings, against their employer. This cannot be right either. It would enable employers to victimise employees who brought race discrimination proceedings against them provided they, the employers, were prepared similarly to victimise any employee who had the temerity to sue them for anything.

  77. However, in my opinion there is an important difference between the meaning of the word "circumstances" in sections 1(1)(a) and 2(1) of the Race Relations Act 1976 and Articles 3(1)(a) and 6 of the 1976 Northern Ireland Order on the one hand, and in section 3(4) of the 1976 Act and Article 7 of the 1976 Order on the other. In sections 1(1)(a) and 2(1) and Articles 3(1)(a) and 6 the word "circumstances" occurs in the phrase "in any circumstances relevant for the purposes of any provision of this Act [Order]". The meaning of this phrase in the Sex Discrimination Act 1975 was explained by Stephenson LJ in R v Immigration Appeal Tribunal, Ex p Kassam [1980] 1 WLR 1037, 1041 C-F as follows:

    The Act only applies to discrimination if the discrimination is "in any circumstances relevant for the purposes of any provision" of the Act: see sections 1(1), 3(1), 4(1). This phrase would seem to be an attempted improvement on the language of section 1(1) of the Race Relations Act 1968 and is also to be found in sections 1(1) and 2(1) of the Race Relations Act 1976, which repealed the Act of 1968. The language of the opening sections of the Sex Discrimination Act 1975 and the Race Relations Act 1976 would appear to express the same intention, namely to confine the discrimination with which the legislature was concerned to those practices— including not only acts but deliberate omissions: see section 82(1)— to which the provisions of Part I applied and which the provisions of Parts II to IV made unlawful. The introductory references to the "circumstances relevant for the purposes of any provision of this Act" require the court to take the provisions of Parts II to IV with the provisions of Part I and make plain that Parts II to IV exhaust the circumstances in which sex discrimination (or discrimination on the ground of marriage) as explained in Part I is unlawful.

    See also per my noble and learned friend Lord Nicholls of Birkenhead in Khan at page 1953 B-C.

  78. Therefore in the phrase "in any circumstances relevant for the purposes of any provision of this Act [Order]" the "circumstances" are those in which discrimination against a person is made unlawful, viz. in the field of employment and in other fields such as education and the provision of goods, facilities, services and premises. But section 3(4) of the Race Relations Act 1976 (which does not apply to section 2(1)) and Article 7 of the 1976 Northern Ireland Order (which does not apply to Article 6) relate to "circumstances" which are different in one important respect. They relate to the relevant circumstances to be taken into account to ensure that in a case of alleged discrimination under section 1(1) or Article 3(1) (and not discrimination by way of victimisation) the comparison between the treatment of the complainant and the treatment of another person, actual or hypothetical, relied on by the complainant as a comparator, is a fair comparison, and they include circumstances which are not taken into account in victimisation cases. In a case of discrimination by way of victimisation when comparing the complainant with "other persons" the circumstances of the complainant cannot be "the same" as the circumstances of those other persons in the sense in which that term is used in section 3(4) of the 1976 Act and Article 7 of the 1976 Order because this would require the "other persons", actual or hypothetical, to have brought proceedings against their employer or employers alleging discrimination; and this cannot be right for the reason given by Lord Scott in the passage in Khan page 1963, paragraph 71, which I have cited above.

  79. Accordingly, in my opinion, the decisions in Aziz and Khan are distinguishable from the present case and do not provide guidance as to the meaning of the words "the relevant circumstances" in Article 7, and for the reasons which I have given I consider that the tribunal erred in law in regarding the Chief Inspectors in the other traffic branches as proper comparators.

  80. I would add that, in my opinion, the conclusion that in selecting a proper actual comparator account must be taken of complaints against a female complainant which can fairly be regarded as a reason for removing duties from her does not mean that a woman alleging sexual discrimination is deprived of the protection given to her by Article 3(1) of the 1976 Order. The reason is because a female complainant can request the tribunal to consider a hypothetical comparator - in this case he would be a Chief Inspector against whom similar complaints had been made in respect of the way in which he carried out his appraisal duties.

  81. The way in which, where there is no proper actual comparator, a female complainant can rely on a hypothetical comparator is well illustrated by the decision of the Employment Appeal Tribunal in Chief Constable of West Yorkshire v Vento [2001] IRLR 124. In that case Mrs. Vento claimed sexual discrimination when she was not confirmed in post at the end of her probationary period as a police constable, and she was therefore dismissed. One of the chief grounds for her non-confirmation was the view of her Chief Inspector that she had been dishonest. She had been told by her sergeant, or some other superior officer, to walk to an incident at a store called Mr. Value, but had accepted a lift in a police car and then told the sergeant that she had walked. The employment tribunal upheld her claim and the appeal by the Chief Constable was dismissed by the Employment Appeal Tribunal.

    At page 125 para 7 Lindsay J stated:

    7.

    We would readily accept that the treatment of an actual male comparator whose position was wholly akin to Mrs. Vento's in relation to the Mr. Value incident was not in evidence. It followed that the tribunal had to construct a picture of how a hypothetical male comparator would have been treated in comparable surrounding circumstances. One permissible way of judging a question such as that is to see how unidentical but not wholly dissimilar cases had been treated in relation to other individual cases. That is one approach. Another permissible approach is to ask witnesses how the hypothetical case that requires to be considered would have been dealt with, although great care has to be exercised in assessing the answers to questions such as that, because the witness will be aware that it will be next to impossible to disprove any answer to a hypothetical question and also witnesses will know, by the time of the tribunal hearing, what sort of answer is convenient or helpful to the side that they might wish to support.

  82. At page 126 para 11 Lindsay J set out the conclusion of the employment tribunal that "the applicant was less favourably treated than a hypothetical male officer would have been in the same circumstances" and then stated:

    12.

    Three things, I think, need to be said. It cannot, in our view, be said that such a conclusion as to the treatment that would have been meted out to a hypothetical male comparator in like circumstances represents so outlandish an inference or extrapolation from the actual cases examined by the tribunal as to be a conclusion without support of any evidence or otherwise to be such that the tribunal, properly instructing itself, could not have arrived at it. Secondly, the conclusion expressed by the tribunal is wide enough by its reference to 'in the same circumstances' to include the more particular case which the notice of appeal complains was not addressed. Thirdly, it is all too easy to become nit-picking and pedantic in the approach to comparators. It is not required that a minutely exact actual comparator has to be found. If that were to be the case, then isolated cases of discrimination would almost invariably go uncompensated. It is thus the case that inferences will very frequently need to be drawn. They are not, of course, to be drawn from thin air. But, equally, the facts from which they are drawn do not have to be such that the inference found is the only possible conclusion which those facts could lead to. It is properly to be left to the good sense of the tribunal that also has the advantage of seeing and hearing the witnesses giving such explanations as they may of those surrounding circumstances.

    13.

    Here the tribunal concluded as we have cited in respect of Mrs. Vento being treated less favourably than would have been a hypothetical male officer in the same circumstances. The reference to 'the same circumstances' plainly is intended to include the Mr. Value incident.

    It is apparent from paragraph 13 that the employment tribunal and the Employment Appeal Tribunal considered that the Mr. Value incident was part of the relevant circumstances and in my opinion they were right to do so.

  83. In the present case the appellant did not rely on a hypothetical male comparator i.e. a male Chief Inspector in respect of whom similar complaints in relation to appraisal reports or the discharge of somewhat similar duties had been made, but based her case on a comparison with actual male Chief Inspectors against whom no complaints had been made. I further consider that there was no evidence before the tribunal which would have entitled them to find that if similar complaints had been made against a male Chief Inspector he would have been treated more favourably than the appellant. I also think that in the present case the Court of Appeal did not fail to consider a possible male hypothetical comparator because Carswell LCJ stated at page 11:

    In our view if [the tribunal] had adopted the correct test it was bound to reach the conclusion that the other chief inspectors were not valid comparators 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.

    [Emphasis added]

    ON THE GROUND OF HER SEX

  84. In my opinion the matters set out in paragraphs 3.3 to 3.8 of the tribunal's decision and the observations made by the tribunal in paragraph 3.12 appear to provide an obvious explanation as to why Superintendent Laird decided to remove appraisal duties from the appellant and to show that his decision did not relate to her sex.

  85. The tribunal explained its decision on the question whether the treatment of the appellant was on the ground of her sex as follows:

    3.13

    The tribunal then had to give consideration to the question as to whether the treatment meted out to her was because she was a woman.

    It was common knowledge that the policy relating to appraisals was to change in December 1997. It was therefore open to the Superintendent to question the Federation as to the need to strictly follow the Force Regulations when they were to be changed in less than three months. There did not appear to be any urgent need to change what had become the custom and practice within the Force generally that Chief Inspectors did the counselling of Constables. In addition by the time of the Federation meeting the offending section in Constable Currie's appraisal had been deleted on Superintendent Laird's evidence. If that was so, what was the need for such a meeting? Constable Currie was now satisfied. The only change as a consequence of the meeting was that the applicant had the completion of appraisals taken from her. That seems to have been the prime reason for the meeting. As far as the tribunal are aware, the Federation did not make any further representations within the Force with regard to Chief Inspectors doing counselling and the strict compliance with the Regulations.

    The majority of the tribunal were of the opinion that there was sufficient material from which it could reach the opinion that the applicant had been discriminated against on the grounds of her sex. The majority of the tribunal accepted that the changing of what had been the custom and practice regarding the completion of staff appraisals by Chief Inspectors only related to the applicant, and were satisfied that she had been treated differently because she was a woman. The minority member was of the opinion that the less favourable treatment was not because of her gender and was of the opinion that a male Chief Inspector in similar circumstances would have received similar treatment.

  86. In my opinion the majority of the tribunal gave no reasons in the first two sentences of the last subparagraph of paragraph 3.13 to show why they considered that the treatment of the appellant was on the ground of her sex, and why their opinion was right and the opinion of the minority member was wrong. The law is clear that an appellate court should not substitute its own opinion for the opinion of the tribunal, and that the decision of a tribunal should not be subjected to a detailed and critical analysis. But the law is also clear that a tribunal must state the reasons which led them to reach their conclusion. A party is entitled to know why he lost. In Meek v City of Birmingham District Council [1987] IRLR 250, 251 Bingham LJ stated:

    It has on a number of occasions been made plain that the decision of an Industrial Tribunal is not required to be an elaborate formalistic product of refined legal draftsmanship, but it must contain an outline of the story which has given rise to the complaint and a summary of the Tribunal's basic factual conclusions and a statement of the reasons which have led them to reach the conclusion which they do on those basic facts. The parties are entitled to be told why they have won or lost. There should be sufficient account of the facts and of the reasoning to enable the EAT or, on further appeal, this court to see whether any question of law arises; and it is highly desirable that the decision of an Industrial Tribunal should give guidance both to employers and trade unions as to practices which should or should not be adopted.

  87. It is possible that the majority of the tribunal took the view (although on the facts found by the tribunal there appears to be nothing to support such a view) that if the Chief Inspector who had made the appraisal reports on Constable Lowens and Constable Currie which had given rise to complaints had been a man, the Superintendent would not have complied with the request of the Federation and would have defended him against the Federation's complaint, but did not do so in this case because the Chief Inspector was a woman. But an equally possible view is that if a male Chief Inspector had commented in the appraisals of Constable Lowens and Constable Currie in the terms used by the appellant, and those constables had complained and the Federation had requested a meeting, the Superintendent would also have taken the decision to take away the task of completing the appraisals from that male Chief Inspector. The majority of the tribunal do not say that the first view was the one which they had taken and, if it was, why they considered that it was the correct view and not the other view. Therefore I consider that Carswell LCJ was correct to state at pages 11-12 of the judgment of the Court of Appeal:

    Adopting for the purposes of this argument the hypothesis that the respondent had been treated differently from male officers, the tribunal would be entitled to consider the possibility of sex discrimination and look to the employer for an explanation. That explanation is furnished in the present case by the fact that complaints were made about the respondent's discharge of her duties and the Police Federation made representations about her. The onus then remains with the claimant to establish that her different treatment was on the ground of her sex. There is no evidence to be found in the case stated or the tribunal's decision which would furnish any basis for such a finding ....

  88. I would apply to the decision of the tribunal in this case the words of Pill LJ in Hazelhurst v Governors of Warwick Park School [2001] EWCA Civ 2056 para 28 where the applicants alleged racial discrimination:

    In my judgment, it is quite impossible, looking at the detailed findings as a whole, to find a decisive pointer towards a racially discriminatory attitude. It is impossible to find in the judgment of the Employment Tribunal any reason why they drew the inference they did from the facts they found. Bingham LJ stated in Meek that a party before an employment tribunal is entitled to know why it lost. The respondents in this case have no sufficient indication of that from the judgment of the Employment Tribunal. In the absence of reasoning, there is a real danger that the inference has been wrongly drawn.

  89. Therefore, for the reasons which I have given, I am of opinion that the appellant failed to establish that she had been treated less favourably by Superintendent Laird than he treated or would have treated a male police officer. I am further of opinion that there was no evidence set out in the tribunal's decision and no reasons given by the majority of the tribunal which justified a finding that the treatment which the appellant received was on the ground of her sex.

  90. In some circumstances where a tribunal fails to give adequate reasons for their decision justice may require that the case should be remitted to the original tribunal to state their reasons more fully or that the case should be remitted to a differently constituted tribunal for a new hearing. But in this case I consider that the proper course is to uphold the decision of the Court of Appeal to reverse the tribunal's decision and to dismiss the appellant's complaint because there was no evidence before the tribunal upon which they could properly find that Superintendent Laird treated her less favourably than he treated or would have treated a male police officer. Accordingly I would dismiss this appeal.

    DETRIMENT

  91. If the appellant had proved that she had been discriminated against by Superintendent Laird on the ground of her sex, I consider, for the reasons given by my noble and learned friend Lord Hope of Craighead, that she would have been entitled to a finding that she was subjected to a detriment and that the judgment of the Court of Appeal on this point, delivered before the judgment of this House in Chief Constable of the West Yorkshire Police v Khan [2001] 1 WLR 1947, should not be followed.

    Lord Scott of Foscote

    My Lords,

  92. The relevant act of sex discrimination of which the appellant complains is succinctly described in the application of 9 December 1997 that she made to an industrial tribunal for Northern Ireland:

    In September 1995 I was promoted to the position of Chief Inspector and am attached to the Urban Traffic Region. Part of my duties and responsibilities since appointment to the position of Chief Inspector has been in counselling constables regarding their staff appraisals. However since October of this year I have not been allocated any staff appraisals. I know that male colleagues in similar positions continue to carry out such counselling and therefore believe that I am being treated less favourably on grounds of sex by not being allocated these duties.

  93. The facts underlying this complaint are, with one important exception, not in dispute. The important exception is whether the decision to withhold staff appraisal duties from the appellant was taken because of her sex. There is no other relevant fact in dispute.

  94. From September 1995 to the time the alleged act of discrimination took place the appellant held the rank of Chief Inspector and was attached to the Urban Traffic Branch, one of three branches within the Traffic Branch of the Royal Ulster Constabulary ("the RUC"). The other two branches were the South Branch and the North Branch. In February 1997 Superintendent Laird became the head of the Urban Branch and the appellant's immediate superior. The South Branch and the North Branch each had its own Superintendent. The Traffic Branch was headed by a Chief Superintendent.

  95. The RUC operated a Staff Appraisal Scheme under which all officers up to the rank of Superintendent were subjected to annual appraisals. An appraisal had two stages. First there had to be a report compiled by an "assessing officer". Then there had to be an interview with a "counselling officer" (para 3.1 of the Scheme). Naturally, the assessing officer and the counselling officer had to be of a rank senior to that of the officer being appraised. Paragraph 3.2 of the Scheme made provision for this. It provided that, where a constable was being appraised, "normally" the assessing officer would be an inspector and the counselling officer would be a superintendent. The adverb "normally" was presumably intended to cater for unforeseen emergencies or staff shortages.

  96. But notwithstanding the terms of paragraph 3.2 of the Scheme, a practice had become established in the RUC, including in the Traffic Branch, under which the counselling officer for the appraisal of constables would be a Chief Inspector rather than a Superintendent. Consistently with this practice the appellant acted as counselling officer on the appraisal of Urban Branch constables on a number of occasions. Her counterparts, the Chief Inspectors in the South Branch and the North Branch, did likewise in respect of constables in their Branches.

  97. On two occasions in 1997 complaints to Superintendent Laird were made by constables about the manner in which the appellant had conducted their respective appraisals. The second constable to complain, Constable Currie, not only complained to Superintendent Laird but also took his complaint to the Police Federation. The Federation's representatives required a meeting with Superintendent Laird about the appraisal procedures. The meeting took place on 6 October 1997. In the course of the meeting Superintendent Laird was referred to paragraph 3.2 of the Staff Appraisal Scheme and was constrained to agree that its requirements were not being strictly observed in that the appellant, a Chief Inspector, was acting as counselling officer on the appraisal of constables. The Superintendent agreed with the Federation representatives that in future paragraph 3.2 of the Staff Appraisal Scheme would be complied with and that the appellant would not carry out counselling officer duties on the appraisal of constables otherwise than in cases where, due to his absence, he was unable to carry out those duties himself.

  98. Important background to this meeting and to the Superintendent's agreement to comply with the letter of the Staff Appraisal Scheme requirements was that a revised scheme was due to be implemented in December 1997 and that under the revised scheme the counselling officer on constable appraisals was to be a Chief Inspector. This was common knowledge. It would have been known both to Superintendent Laird and to the Federation representatives at the 6 October 1997 meeting. So the withholding of counselling officer functions from the appellant would continue only until the implementation of the revised scheme in December that year.

  99. On these facts, and after hearing evidence from, among others, Superintendent Laird, the Industrial Tribunal came to a majority conclusion that the appellant "had been unlawfully discriminated against on the grounds of her sex with regard to the removal of the right to carry out appraisals" (p 8 of the Appendix Part I). The Tribunal's expressed reasons for coming to this conclusion are important.

  100. First, the Tribunal dealt with the position of the Federation:

    The applicant under cross-examination made an allegation that the Federation .... had been guilty of discrimination against her. The Federation were not a party to these proceedings and the tribunal were not required to reach a conclusion on that issue. It is clear that they did not make the same representations in respect of male Chief Inspectors in other traffic regions.

    (p 17 Appendix I).

  101. Next, the tribunal, having concluded unanimously that the appellant had been treated unfavourably by Superintendent Laird in respect of the appraisals, addressed the all-important question of whether the treatment was because she was a woman. The relevant passage, 3.13 of the Decision, is set out in full in paragraph 27 of the opinion of my noble and learned friend Lord Hope of Craighead and I need not repeat it.

  102. The tribunal's conclusion, expressed in the cited passage, was that Superintendent Laird, in deciding to withhold counselling officer duties from the appellant, had treated her "less favourably than he .... would treat a man" (Article 3(1) of the 1976 Order). This conclusion imposed liability under the 1976 Order on the Chief Constable, Superintendent Laird's employer (see Article 42(1) of the Order). The Chief Constable appealed by way of case stated to the Court of Appeal in Northern Ireland. The questions that were posed by the case stated are set out in paragraph 18 of Lord Hope's opinion.

  103. The first issue dealt with by the Court of Appeal was the issue of detriment, an issue that had not been dealt with at all by the Industrial Tribunal. Presumably the tribunal had taken the view that it was obvious that Superintendent Laird's decision constituted detriment to the appellant for the purposes of Article 8(2)(b) of the 1976 Order. If the tribunal did take that view I am in agreement with them. The withholding from the appellant of counselling officer duties was liable to detract from the respect accorded to her by her colleagues and to deprive her of an opportunity to impress senior officers with her capabilities.

  104. The Court of Appeal, however, came to the conclusion that Superintendent Laird's decision had not subjected the appellant to any detriment. They adopted a construction of "detriment" that required there to be "some physical or economic consequence as a result of discrimination". I am unable to agree with the Court of Appeal and am in general agreement with the views expressed by Lord Hope in paragraphs 31 to 37 of his opinion.

  105. My only reservation is that the test of detriment as expressed by Brightman LJ in Ministry of Defence v Jeremiah [1980] QB 87 at 104, cited by Lord Hoffmann in Chief Constable of the West Yorkshire Police v Khan [2001] 1 WLR 1947 at 1959-1960 (see paras 33 and 35 of Lord Hope's opinion), namely, that "a detriment exists if a reasonable worker would or might take the view that the [treatment] was in all the circumstances to his detriment", must be applied by considering the issue from the point of view of the victim. If the victim's opinion that the treatment was to his or her detriment is a reasonable one to hold, that ought, in my opinion, to suffice. In Khan the complainant, desiring to apply for a new job, wanted a reference to be given by his employers. His employers refused to give one. It was clear that if they had given one it would have been an unfavourable one. It might be said that a reasonable worker would not want an unfavourable reference. But the complainant wanted to be treated like all other employees and to be given a reference. The House concluded that this was a reasonable attitude for him to adopt and that the refusal to give him a reference constituted "detriment". He was being deprived of something that he reasonably wanted to have. And while an unjustified sense of grievance about an allegedly discriminatory decision cannot constitute "detriment", a justified and reasonable sense of grievance about the decision may well do so. On the facts of the present case I agree with Lord Hope that the appellant was entitled to a finding that she was subjected to a detriment within the meaning of Article 8(2)(b) of the 1976 Order.

  106. Less favourable treatment and comparators. Article 3(1) of the 1976 Order declares that "a person discriminates against a woman .... if.... on the ground of her sex he treats her less favourably than he treats or would treat a man". And Article 7, headed "Basis of Comparison", provides that:

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

  107. There has been, in my respectful opinion, some confusion about the part to be played by comparators in the reaching of a conclusion as to whether a case of Article 3(1) discrimination — or for that matter a case of discrimination under section 1(1) of the Sex Discrimination Act 1975, or under section 1(1) of the Race Relations Act 1976, or under the comparable provision in any other anti-discrimination legislation — has been made out. Comparators come into play in two distinct and separate respects.

  108. First, the statutory definition of what constitutes discrimination involves a comparison: ".... treats that other less favourably than he treats or would treat other persons". The comparison is between the treatment of the victim on the one hand and of a comparator on the other hand. The comparator may be actual ("treats") or may be hypothetical ("or would treat") but "must be such that the relevant circumstances in the one case are the same, or not materially different, in the other" (see Article 7). If there is any material difference between the circumstances of the victim and the circumstances of the comparator, the statutory definition is not being applied. It is possible that, in a particular case, an actual comparator capable of constituting the statutory comparator can be found. But in most cases a suitable actual comparator will not be available and a hypothetical comparator will have to constitute the statutory comparator. In Khan one of the questions was as to the circumstances that should be attributed to the statutory hypothetical comparator. It is important, in my opinion, to recognise that Article 7 is describing the attributes that the Article 3(1) comparator must possess.

  109. But, secondly, comparators have a quite separate evidential role to play. Article 7 has nothing to do with this role. It is neither prescribing nor limiting the evidential comparators that may be adduced by either party. The victim who complains of discrimination must satisfy the fact finding tribunal that, on a balance of probabilities, he or she has suffered discrimination falling within the statutory definition. This may be done by placing before the tribunal evidential material from which an inference can be drawn that the victim was treated less favourably than he or she would have been treated if he or she had not been a member of the protected class. Comparators, which for this purpose are bound to be actual comparators, may of course constitute such evidential material. But they are no more than tools which may or may not justify an inference of discrimination on the relevant prohibited ground e.g. sex. The usefulness of the tool will, in any particular case, depend upon the extent to which the circumstances relating to the comparator are the same as the circumstances relating to the victim. The more significant the difference or differences the less cogent will be the case for drawing the requisite inference. But the fact that a particular chosen comparator cannot, because of material differences, qualify as the statutory comparator, egg. under Article 7, by no means disqualifies it from an evidential role. It may, in conjunction with other material, justify the tribunal in drawing the inference that the victim was treated less favourably than she would have been treated if she had been the Article 7 comparator.

  110. In summary, the comparator required for the purpose of the statutory definition of discrimination must be a comparator in the same position in all material respects as the victim save only that he, or she, is not a member of the protected class. But the comparators that can be of evidential value, sometimes determinative of the case, are not so circumscribed. Their evidential value will, however, be variable and will inevitably be weakened by material differences between the circumstances relating to them and the circumstances of the victim.

  111. The Industrial Tribunal did not, in reaching its majority conclusion in favour of the appellant, expressly rely on comparators. There was a reference (in paragraph 3.13) to ".... sufficient material from which [the tribunal] could reach the opinion that the applicant had been discriminated against on the grounds of her sex" but the material in question was not identified. It may be, and I would be prepared to assume, that the material included the evidence about the Chief Inspectors of the North Branch and the South Branch, both male, who had been carrying out the same counselling officer duties as the appellant and neither of whom had been deprived of those duties. Certainly the Court of Appeal made that assumption (p 10 of the judgment).

  112. There were, however, two material differences between the circumstances relating to each of these Chief Inspectors and those relating to the appellant. First, no constable in either the South Branch or the North Branch had complained about the manner in which the Chief Inspector in question had carried out his counselling officer duties and, no complaint to the Federation having been made, the Federation did not raise with either of the Superintendents the question whether the involvement of Chief Inspectors in appraisals was consistent with paragraph 3.2 of the Staff Appraisal Scheme. Second, Superintendent Laird, the alleged discriminator, had no managerial responsibility or function in relation to the staff appraisal procedures followed in the South Branch and North Branch. He could not, even if he had wanted to, have deprived the Chief Inspectors of those Branches of their counselling officer duties.

  113. These two important differences rule out the use of the two Chief Inspectors as Article 7 comparators. The critical question for Article 3(1) purposes is whether the appellant, a Chief Inspector about whom complaints had been made and whose role in staff appraisals had been challenged by the Federation, had been treated by Superintendent Laird less favourably than he would have treated a male Chief Inspector about whom similar complaints had been made and whose role in staff appraisals had been similarly challenged by the Federation. In the present case, as in most cases, the Article 7 comparator had to be a hypothetical comparator. In considering this critical question it is necessary to keep in mind that the alleged discriminator was Superintendent Laird, not the Chief Constable. The Chief Constable's liability is merely vicarious (Article 42(1)). The question is not how the Chief Constable would have treated the appellant but how the Superintendent would have treated her if she had been a man.

  114. The question remains, however, whether the Chief Inspectors of the South Branch and the North Branch constituted comparators of evidential value justifying the inference drawn by the tribunal that Superintendent Laird's treatment of the appellant was attributable to her sex. That depends on the degree of materiality of the two differences to which I have referred. In my opinion, the differences deprive the two Chief Inspectors, as comparators, of any significant evidential value.

  115. The fact that no complaint was made about either of the other two Chief Inspectors and that no criticism of their role in staff appraisals was directed by the Federation to their Superintendents makes it impossible to know how their Superintendents would have reacted if the position had been otherwise. Moreover, the fact that neither of these Superintendents took the action in relation to his Chief Inspector that Superintendent Laird took in relation to the appellant is no guide as to how Superintendent Laird would have reacted if there had been a male Chief Inspector, additional to the appellant, in the Urban Branch. How he would have reacted would have been illuminating but is unknowable. The fact that the Superintendents of the other Branches allowed their Chief Inspectors to continue to carry out counselling officer duties does not, to my mind, provide any guide as to what Superintendent Laird would have done if, having had his meeting with the Federation, he had had to deal not only with the appellant but also with a male Chief Inspector carrying out similar duties. An inference that Superintendent Laird's decision to deprive the appellant of her counselling officer duties was taken because of her sex is not assisted in the least by the fact that the other Superintendents did not deprive their male Chief Inspectors, about whom no complaint had been made, of their counselling officer duties.

  116. In the absence of any evidentially valuable comparators, was there any other material that the Industrial Tribunal majority might have had in mind as constituting the "sufficient material" to which they referred? I would readily accept that it is possible for a case of unlawful discrimination to be made good without the assistance of any actual comparator. I respectfully agree with Lord Hope that the contrary opinion expressed by Carswell LCJ in Chief Constable of the Royal Ulster Constabulary v A [2000] NI 261 cannot be accepted (paras 46 and 47 of Lord Hope's opinion). But in the absence of comparators of sufficient evidential value some other material must be identified that is capable of supporting the requisite inference of discrimination. Discriminatory comments made by the alleged discriminator about the victim might, in some cases, suffice. Unconvincing denials of a discriminatory intent given by the alleged discriminator, coupled with unconvincing assertions of other reasons for the allegedly discriminatory decision, might in some cases suffice. But there is nothing of that sort in the present case, or, at least, no reference to anything of that sort was made by the Industrial Tribunal.

  117. The only matter relied on in the present case as justifying the inference of discrimination is the difference between the treatment of the appellant by Superintendent Laird and the treatment of the other two Chief Inspectors by their Superintendents. For the reasons I have tried to explain no inference of discrimination can fairly be derived from that difference.

  118. Accordingly, I am in agreement with the Court of Appeal that no reasonable tribunal could have reached a conclusion in favour of the appellant.

  119. There is a further point to be made. If the approach of the Industrial Tribunal was correct, it will have been demonstrated that Superintendent Laird, when faced with the request made by the Federation, needed to reject it in order to protect himself, and the RUC, from an allegation of sexual discrimination. He would have been precluded by the 1976 Order from preferring the avoidance of confrontation with the Federation to the avoidance of detriment to the appellant. In the case of a male Chief Inspector he could have preferred the former without fear of repercussions and have justified his choice on understandable pragmatic grounds. The 1975 Act and the other anti-discrimination legislation, including the 1976 Order in Northern Ireland, are designed to prevent discriminatory unfairness to the protected class in question. This legislation was, and is, highly important. It attempts to remedy various types of social injustice. But an implementation of the legislation that tends to require a more favourable treatment of the protected class than a member of the class could expect if he or she were not a member of that class turns anti-discrimination legislation on its head and brings it into disrepute. A finding of discrimination where no material exists to support the finding tends, in my opinion, to that result.

  120. For these reasons, and for those expressed in the opinion of my noble and learned friend Lord Rodger of Earlsferry with whom I am in complete agreement, I would dismiss this appeal.

    Lord Rodger of Earlsferry

    My Lords,

  121. This appeal raises important issues as to the construction and application of provisions of the Sex Discrimination (Northern Ireland) Order 1976 ("the Order") which mirror those of the Sex Discrimination Act 1975 ("the 1975 Act"). I gratefully adopt the narrative of the facts and submissions that my noble and learned friend Lord Hope of Craighead has given.

  122. Although many of the same issues arise in other fields to which the legislation applies, for the sake of simplicity in this opinion I look at the provisions only as they operate in the field of employment. In any such case where a woman raises an issue of sex discrimination a tribunal has two questions to decide, although the second question is sometimes for convenience broken down.

  123. The first question is whether the employer has discriminated against the woman in any of the ways specified in article 8(1). In this case the specific question was whether Superintendent Laird had discriminated against the appellant by subjecting her to a detriment in terms of article 8(2)(b). On the basis of their interpretation of "detriment" in the context of that provision the Court of Appeal held that he had not. I agree, however, with Lord Hope of Craighead that, in the light of the subsequent decision of this House in Chief Constable of the West Yorkshire Police v Khan [2001] UKHL 48; [2001] 1 WLR 1947, the Court of Appeal's interpretation cannot stand. I am also satisfied that when he stopped the appellant from carrying out staff appraisals Superintendent Laird subjected her to a detriment in terms of article 8(2)(b).

  124. The second question for the tribunal is whether by so subjecting the woman to a detriment the employer "discriminated" against her in terms of article 8(2). In this case the question for the tribunal was whether by stopping the appellant from carrying out staff appraisals Superintendent Laird "discriminated" against her in terms of that article. As my noble and learned friend Lord Scott of Foscote points out, it is important to bear in mind that the issue for the tribunal was whether Superintendent Laird, as an individual, discriminated against the appellant. Any liability of the Chief Constable would arise vicariously by reason of article 42(1) of the Order.

  125. The meaning of discrimination for purposes of article 8(2) is to be found in Part II of the Order. In this case the relevant provision is in article 3(1)(a):

    A person discriminates against a woman in any circumstances relevant for the purposes of [article 8(2)(b)] of this Order if -

    (a)

    on the ground of her sex he treats her less favourably than he treats or would treat a man....

    For the moment therefore the second question for the tribunal can be provisionally formulated in this way: has the appellant proved that in the relevant circumstances on the ground of her sex Superintendent Laird treated her less favourably than he treated or would have treated a man? Although in the end the tribunal had to answer just this single question, it has been recognised that in certain cases it may be convenient, for the purpose of analysis, to split the question into two parts - less favourable treatment and the ground of sex. See, for instance, Zafar v Glasgow City Council [1998] IRLR 36, 38, para 10 per Lord Browne-Wilkinson (dealing with section 1(1) of the Race Relations Act 1976). In practice the tribunal's view on the first issue will often go a considerable way towards answering the whole question since a finding of discrimination where there is a difference of sex will tend to point to the possibility of sex discrimination. Cf King v Great Britain China-Centre [1991] IRLR 513, 518 per Neill LJ. While dividing the issues up in this way may be helpful in certain cases, I respectfully agree with Lord Nicholls of Birkenhead that there are other cases - and this may be one - where the issues are so intertwined that attempting to deal with them separately may hinder rather than help a tribunal to resolve them.

  126. In this case the tribunal did in fact split up the question although it somewhat loosely identified the first part as involving a consideration of whether Superintendent Laird treated the appellant "unfavourably" (Extended Reasons, para 3.12). This is probably best treated as a slip of the pen. More accurately, of course, the first stage of the analysis required the tribunal to consider whether, by stopping her from doing appraisals, Superintendent Laird had treated the appellant "less favourably" than he treated or would have treated a man. That part of the exercise necessarily involves a comparison. The nature of the comparison is laid down, in not particularly elegant language, in article 7:

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

    The same provision is to be found in section 5(3) of the 1975 Act.

  127. By reason of article 7 the comparison under article 3(1) must be with a man whose relevant circumstances are not materially different from those of the female applicant. In this case therefore the second question for the tribunal can be reformulated, if somewhat clumsily, in this way: has the appellant proved that in the relevant circumstances on the ground of her sex Superintendent Laird treated her less favourably than he treated or would have treated a man in the same or not materially different circumstances? In rather an abstract form, that was the ultimate issue which the tribunal had to decide. The appellant had to lead evidence to satisfy the tribunal on it. I deal later with what form that evidence might take but must first consider what are "the relevant circumstances" and "the same or not materially different" circumstances that require to be taken into account when making this kind of comparison under articles 3(1)(a) and 7.

  128. On the approach advocated by Ms McGrenera QC on behalf of the appellant the relevant circumstances are said not to include circumstances which are unique to the applicant. In particular they are said not to include the circumstances which the employer took into account when he decided to treat the applicant as he did. So, for instance, in this case the complaints and representations about the appellant's staff appraisals and the events at Superintendent Laird's meeting with the Police Federation must be ignored. These might be relevant when the tribunal reached the next stage of the analysis and was considering whether any difference in treatment was on the ground of the appellant's sex. But at this first stage the only relevant circumstances would be that the appellant was a chief inspector in the Urban Traffic branch of the Royal Ulster Constabulary and that she carried out staff appraisals. The tribunal therefore required to compare how Superintendent Laird treated the appellant and how he treated, or would have treated, a male officer of equivalent rank who carried out staff appraisals. Here, it is said, Superintendent Laird stopped the appellant from doing appraisals whereas there were two male chief inspectors in other regions who were allowed to continue doing them. The comparison should be between this treatment of the appellant and this treatment of those two male officers. The tribunal applied this approach (Extended Reasons, para 3.11 and Stated Case, para 6).

  129. The obvious objection to this approach is that the exercise of comparing the two cases serves no useful purpose. If a tribunal or anyone else wants to see whether an employer discriminated against a female employee, there is no point in looking at what he did to her out of its context and comparing it with what he did to a man, also out of context. Logically, the appellant's approach would mean that a woman who was sacked for trying to burn down her employer's factory would be treated "less favourably" in terms of article 3(1)(a) than a male fellow employee in the same department who was given a bonus for putting the fire out. That can hardly be right: the similarities or differences in the two contexts are precisely what matters in deciding whether the employer discriminated against the woman by treating her less favourably than the man.

  130. Despite this, counsel for the appellant claimed to find support for her approach in the speech of Lord Nicholls of Birkenhead in Chief Constable of the West Yorkshire Police v Khan [2001] 1 WLR 1947, 1953 - 1954, paras 24 - 28, a case of victimisation under section 2(1) of the Race Relations Act 1976, the equivalent of article 6 of the Order. I have studied his speech in the present case which satisfies me that the decision of the House in Khan's case does not in fact support her argument and that, protected act aside, the hypothetical comparator in a victimisation case should be in the same position as the complainant. This accords with what Lord Scott of Foscote said: [2001] 1 WLR 1947, 1963, para 73. Nevertheless, when trying to ascertain the meaning of "the relevant circumstances" in article 7, I prefer to concentrate on the terms of articles 3(1)(a) and 7.

  131. Broadly speaking, the alternative to the appellant's approach to the interpretation of "the relevant circumstances" is to say that, in terms of articles 3(1)(a) and 7, the comparison should proceed on the basis of all the circumstances that are relevant to the way that the employer treated the female employee who complains of discrimination. In this case, however, the Court of Appeal applied a particular version of this approach which Carswell LCJ explained in this way:

    We stated in Chief Constable of the RUC v A [2000] NI 261, 271 that the circumstances which are to be regarded as relevant for the purposes of construction of section 16(2) of the Fair Employment (Northern Ireland) Act 1976, in a case in which religious discrimination is alleged, are those upon which a reasonable person would place some weight in determining how to treat another. The same criterion should in our opinion be applied to the closely similar provisions of Article 7 of the 1976 Order. The tribunal regarded the chief inspectors in the other divisions of Traffic Branch as comparators because they held similar rank and carried similar responsibilities in their regions. There were, however, other circumstances in the respondent's case which did not apply to the other chief inspectors, namely that complaints had been made against the respondent about her performance of the appraisal of constables and that representations had been made by the Police Federation about that. In our view these are circumstances which no reasonable person could ignore or omit in comparing the respondent with the other chief inspectors for present purposes.

    The Court of Appeal considered that in making the necessary comparison under article 3(1) the tribunal should have regard to the circumstances upon which a reasonable person would put some weight in determining how to treat another. On behalf of the Chief Constable Mr. Morgan QC supported that interpretation.

  132. I would respectfully reject the Court of Appeal's interpretation of Article 7, even though on the facts of this case I would come to very much the same conclusion as to what the relevant circumstances actually were. Their interpretation must be wrong because it re-introduces into the law of discrimination the figure of the reasonable employer whom the House was at pains to expel in Zafar v Glasgow City Council [1999] IRLR 36, 38, para 11. That case involved a claim of direct discrimination under section 1(1) of the Race Relations Act 1976. Section 3(4), which corresponds to article 7 of the Order in sex discrimination cases, applied. Lord Browne-Wilkinson said this:

    The Act of 1976 requires it to be shown that the claimant has been treated by the person against whom the discrimination is alleged less favourably than that person treats or would have treated another. In deciding that issue, the conduct of a hypothetical reasonable employer is irrelevant. The alleged discriminator may or may not be a reasonable employer. If he is not a reasonable employer, he might well have treated another employee in just the same unsatisfactory way as he treated the complainant, in which case he would not have treated the complainant 'less favourably' for the purposes of the Act of 1976. The fact that, for the purposes of the law of unfair dismissal, an employer has acted unreasonably casts no light whatsoever on the question whether he has treated the employee 'less favourably' for the purposes of the Act of 1976.

    Lord Browne-Wilkinson went on to say that he could not improve on the reasoning of Lord Morison giving the opinion of the Second Division of the Court of Session, 1996 SC 502, 505G - H:

    The requirement necessary to establish less favourable treatment which is laid down by section 1(1) of the 1976 Act is not one of less favourable treatment than that which would have been accorded by a reasonable employer in the same circumstances, but of less favourable treatment which had been or would have been accorded by the same employer in the same circumstances.

    It follows that, for the purposes of article 3(1)(a) of the Order, circumstances may be relevant even if no reasonable employer would ever have attached any weight to them in considering how to treat his employees.

  133. I would therefore reject both the appellant's and the Chief Constable's interpretation of article 7.

  134. Parliament has not spelled out what constitute "the relevant circumstances" in article 7. The meaning of the words must therefore be deduced from the context. They occur in a provision prescribing how anyone administering the Order is to determine whether an alleged discriminator treated a woman less favourably than a man on the ground of her sex under article 3(1). So "the relevant circumstances" must be those circumstances that are relevant for that purpose. In Nagarajan v London Regional Transport [2000] 1 AC 501, 510H - 511B, Lord Nicholls of Birkenhead pointed out that in every case of alleged discrimination it is necessary to enquire why the complainant received less favourable treatment. As he went on to say, save in obvious cases, this will call for some consideration of the mental processes of the alleged discriminator in order to identify the grounds of his decision. I accordingly infer that "the relevant circumstances" in article 7 are those which the alleged discriminator takes into account when deciding to treat the woman as he does or when deciding to treat the man as he treats, or would treat, him.

  135. It is, I think, obvious that the circumstances which the alleged discriminator takes into account when deciding to treat the woman as he does will be relevant for the purposes of article 7. So, for instance, if an employer dismissed a woman because she was persistently late for work over a three-month period, then the relevant circumstances will be her persistent lateness over a three-month period. In terms of article 7 the employer's treatment of the woman must be compared with how he treats or would treat a man in the same or not materially different circumstances, i.e. where he too has been persistently late for work over a three-month period.

  136. The relevant circumstances for the purposes of article 7 cannot be confined, however, to those which the alleged discriminator takes into account when deciding to treat the woman as he does. That would exclude many cases of discrimination from the protection of the Order. Suppose, for instance, that an employer dismissed a woman who was persistently late for work over a three-month period and in doing so he left out of account her explanation that she was late because of problems in looking after her aged mother. If, faced with a man in the same circumstances, the employer took into account his problems in looking after his mother and therefore decided to reprimand rather than dismiss him, then those problems would be a relevant circumstance in his case. Therefore, for the purpose of the comparison required by article 7, those problems would be among the relevant circumstances, even though the employer had not taken the same problems into account in deciding how to treat the woman. Indeed, it is precisely because the employer took account of those problems in the case of the man but ignored them in the case of the woman that he treated her less favourably by dismissing her. If he did this on the ground of her sex, then she will have a valid claim under article 8(2)(b). Article 7 allows for this when it says that the relevant circumstances "in the one case" are to be the same, or not materially different, "in the other". The comparison runs, and is intended to run, in both directions. So circumstances which the alleged discriminator takes into account or would take into account in the case of the male comparator are relevant if they were also present, though not taken into account, in the case of the woman.

  137. Since the Race Relations Act is drafted in the same way, Zafar v Glasgow City Council may serve as an illustration how tribunals and courts have approached this matter. There the applicant was an Asian employee who had been dismissed on the ground that he had sexually harassed clients of the council's social welfare department and fellow employees. He claimed that the council had discriminated against him on racial grounds. The industrial tribunal held that for various reasons the applicant's dismissal had been unfair. In a sentence which followed immediately on the passage approved by Lord Browne-Wilkinson and which explains what was meant by "the same circumstances" at the very end of that passage, the Second Division of the Court of Session said, 1996 SC 502, 505H - I:

    There is nothing whatever in the industrial tribunal's findings which suggests that in the present case there would have been any less unreasonable treatment by the appellants of an employee other than the respondent against whom the same allegations of misconduct had been made.

    In that case the relevant circumstances for the purposes of sections 1(1) and 3(4) were the allegations of sexual misconduct against the applicant which, the tribunal found, the council took into account in deciding to dismiss him. Therefore the tribunal had to consider whether the council treated the applicant less favourably than they would have treated other employees if the same or not materially different allegations had been made against them. In the same way in the present case the relevant circumstances for the purposes of articles 3(1)(a) and 7 were any circumstances which the tribunal found established and which they found that Superintendent Laird had taken into account in deciding to stop the appellant doing staff appraisals. The appellant had to prove that Superintendent Laird treated her less favourably than he treated or would have treated a male officer in the same or not materially different circumstances ("the same circumstances").

  138. The tribunal found that Superintendent Laird's decision to stop the appellant doing staff appraisals followed a meeting with representatives of the Police Federation called to discuss the disagreement over Constable Currie's appraisal and the appellant's comment about alcohol in that appraisal. At the meeting Constable Spratt pointed out that under the relevant Force Regulations staff appraisals of constables were normally to be done by a superintendent rather than by a chief inspector. Superintendent Laird considered that he had to agree to amend the practice since it was highly important to retain good relations with the Federation (Extended Reasons, para 3.8). "He acted [reacted?] without delay to the representations by the Federation...." (para 3.12) and stopped the appellant doing appraisals. The relevant circumstances must accordingly comprise the complaints and representations about the appellant's handling of staff appraisals, what was said at the meeting about them with the Federation and Superintendent Laird's discovery that, strictly speaking, appraisals of constables should have been done by superintendents rather than by chief inspectors. These circumstances are relevant because - despite his evidence to the contrary - the tribunal in effect found that Superintendent Laird took all of them into account when deciding to stop the appellant from doing staff appraisals. So in terms of article 3(1)(a) the tribunal had to decide whether in those circumstances Superintendent Laird treated the appellant less favourably than he treated or would have treated a male officer of similar rank in circumstances that were the same as those circumstances or not materially different from them.

  139. I turn now to the kinds of evidence that an applicant may lead. I agree with what Lord Scott of Foscote has said in this connexion. In some cases it will be easy for an applicant to identify male employees who were in fact treated more favourably in the same circumstances. So, for example, if two employees with similar disciplinary records are found drinking together at lunch time and the employer disciplines them by dismissing the woman but admonishing the man, then proving that the employer treated the woman less favourably than he treated a man in the same circumstances will be straightforward. Evidence of what happened to the man in question will prove the applicant's point. He is an "actual comparator". Often the position will not be so straightforward and the employer may argue that he treated the woman less favourably than the man because of material differences in the circumstances which he took into account in deciding what to do in each case. Once the evidence has been led, it is for the tribunal to examine the facts and decide whether the two cases really are comparable.

  140. Frequently, of course, a woman may claim that her employer discriminated against her in a situation where she cannot point to any actual case in which a male employee has been treated more favourably. What she says is that the employer treated her less favourably than he would have treated a male employee in the same circumstances. The words "would treat" in article 3(1)(a) specifically recognise that she can do this. In a contested claim before a tribunal the applicant has to prove how her employer would have treated a male employee in circumstances which, ex hypothesi, have not actually occurred. That male employee is often referred to as a "hypothetical comparator". In some cases the applicant's task may be relatively easy. For example, she may be able to point to an established policy or practice of the employer that involves treating women less favourably than men in virtually all circumstances. By proving the existence of the policy or practice the applicant may hope to satisfy the tribunal that, in the (unique) situation in which she found herself, her employer treated her less favourably than he would have treated a male employee if the same had happened to him. In many cases, however, the applicant leads more general evidence and invites the tribunal to find facts from which it can infer that her employer treated her less favourably than he would have treated a male employee in the same circumstances.

  141. The task facing an applicant in such cases may well be difficult. Indeed it was to try to obviate these difficulties that at one time employees ran the argument that it was sufficient if an applicant could satisfy the tribunal that her employer had treated her as no reasonable employer would have treated an employee. In Zafar v Glasgow City Council 1996 SC 502, 505I - 506C that approach was stamped out, even though it was recognised that suitable evidence might be difficult to come by in these cases. Some of the arguments advanced in favour of the appellant's interpretation of article 7 echo this discredited plea ad misericordiam. They too must be rejected.

  142. The potentially difficult task for the applicant would be made even more taxing if the Court of Appeal were correct in saying that only certain kinds of evidence can be taken into consideration in these cases. They referred with approval to a passage in the judgment of Carswell LCJ in Chief Constable of the Royal Ulster Constabulary v A [2000] NI 261, a case of religious discrimination, where he said:

    To make out a case under section 16(2)(a) of the 1976 Act an applicant has to show that the respondent has treated him 'less fairly than he treats or would treat other persons'. In the absence of evidence of a regular way in which other persons in the same circumstances are treated, he has to prove that at least one other person in comparable circumstances has been treated differently, which may tend to show how others would have been treated if they and not the applicant had been concerned.

    In my respectful opinion that approach is too restrictive and would place an insurmountable obstacle in the way of many good claims by excluding evidence that could be compelling. Suppose, for instance, that an employer created a new high-level management post and, when refusing to appoint the female applicant to that post, he said that he was doing so because, with a largely male workforce, he did not want a woman at that level of the management structure. The employer's very words would show that he was treating the applicant less favourably than he would have treated a similarly qualified man who applied for the high-level job. Therefore, even although this was the very first time that the appointment fell to be made, by proving what the employer said the applicant could establish that he had treated her less favourably than he would have treated a man, on the ground of her sex.

  143. In practice, an employee is unlikely to be able to point to any such clear utterance. Discrimination is rarely open and may not even be conscious. It will usually be proved only as a matter of inference: Nagarajan v London Regional Transport [2000] 1 AC 501, 511A -D, per Lord Nicholls of Birkenhead. The important point is that there are no restrictions on the types of evidence on which a tribunal can be asked to find the facts from which to draw the necessary inference. In Chief Constable of West Yorkshire v Vento [2001] IRLR 124 the Employment Appeal Tribunal discussed some of the kinds of evidence that are used and how they should be approached. In particular, Lindsay J pointed out, at p 125, para 7, that one permissible way of judging how an employer would have treated a male employee in comparable circumstances is to see how the employer treated male employees in cases which, while not identical, were also not wholly dissimilar. Despite the differences, the tribunal may be able to use that evidence as a sound basis for inferring how the employer would have treated a male employee in the same circumstances as the applicant. Of course, a tribunal cannot draw inferences from thin air, but it can draw them by using its good sense to evaluate the evidence, including the comparisons offered: [2001] IRLR 124, 126, para 12.

  144. I turn to the facts of the present case. As I have indicated already, the relevant circumstances for the purposes of articles 3(1)(a) and 7 included the complaints and representations about the appellant's handling of staff appraisals, Superintendent Laird's meeting with the Federation representatives and his discovery that, strictly speaking, appraisals of constables should have been done by superintendents rather than by chief inspectors. These were the matters which, the tribunal held, led him to stop the appellant doing appraisals. So in terms of article 3(1)(a) the tribunal had to decide whether by taking that action in those circumstances Superintendent Laird treated the appellant less favourably than he treated or would have treated a male officer of similar rank in the same circumstances - i.e. after similar complaints and representations and a similar meeting where the same point had been made about the correct procedure for doing appraisals.

  145. The tribunal regarded the two male chief inspectors in other regions as appropriate comparators for the purpose of article 3(1)(a) because they were in the traffic branch, held the same rank as the appellant and carried out similar responsibilities in their regions. The tribunal attached weight to the fact that those male officers continued to do appraisals whereas Superintendent Laird stopped the appellant from doing them. In other words the tribunal proceeded on the basis that the circumstances relating to those officers were the same as, or not materially different from, the relevant circumstances of the appellant's case. On that basis the tribunal reached the unanimous conclusion that the appellant had been unfavourably (sc less favourably) treated by Superintendent Laird in respect of the appraisals (para 3.12). In effect he treated her less favourably than the two male chief inspectors were treated. The tribunal thus purported to deal with the case on the basis of how the two chief inspectors were actually treated, not on the basis of how they would have been treated in hypothetical circumstances. The tribunal regarded the two male chief inspectors as actual comparators.

  146. The tribunal's decision is vitiated by two fundamental errors. First, it overlooked the fact that Superintendent Laird had no authority over the two male chief inspectors who were in different regions. So, if they continued to do assessments, this was not because of any decision which Superintendent Laird had taken to allow them to do so. He did nothing in relation to them - he did not "treat" them at all. For that reason, it was not open to the tribunal to find in terms of article 3(1)(a) that Superintendent Laird treated the appellant less favourably than he treated the two male chief inspectors. Secondly, in any event, the tribunal misunderstood the nature of the circumstances relating to the appellant which it had to consider under article 3(1)(a). It is, of course, correct that the two male chief inspectors worked in the traffic branch, held the same rank and had similar responsibilities. In those respects they were comparable. But no complaints or representations had been made about them. Their circumstances were therefore materially different from the circumstances which Superintendent Laird took into account - hence the relevant circumstances - in the case of the appellant. So, for that reason also, the fact that the other chief inspectors continued to do appraisals was not a basis for concluding that Superintendent Laird treated the appellant less favourably than a man for the purposes of article 3(1)(a). Because of these fundamental errors in interpreting and applying the article, the tribunal's conclusion cannot stand.

  147. Presumably, because of the way counsel for the appellant presented her case, the tribunal did not consider whether she had proved that Superintendent Laird treated her less favourably than he would have treated a man in the same or not materially different circumstances. Like Lord Scott of Foscote, however, I am satisfied that the tribunal's findings relating to the chief inspectors would not have entitled it to infer that Superintendent Laird would have treated a male chief inspector more favourably. There are, for instance, no findings whatever on how Superintendent Laird treated officers in other, not wholly dissimilar, circumstances. Such findings would, perhaps, have formed a basis from which the tribunal could have inferred how Superintendent Laird would have treated a male chief inspector in the same circumstances as the appellant. But the tribunal's actual findings would be of no use for that purpose.

  148. For these reasons, although she suffered a detriment by being stopped from doing appraisals, the appellant failed to prove that Superintendent Laird discriminated against her by treating her less favourably than he treated or would have treated a man in the same circumstances. I would accordingly dismiss the appeal.


Cases

R v Immigration Appeal Tribunal, Ex parte Kassam [1980] 1 WLR 1037; Chief Constable of the West Yorkshire Police v Khan [2001] 1 WLR 1947; Bain v Bowles [1991] IRLR 356; Chief Constable of the West Yorkshire Police v Khan [2001] 1 WLR 1947; Lord Chancellor v Coker & Osamor [2001] IRLR 116; Barclays Bank Plc v Kapur (No 2) [1995] IRLR 87; Chief Constable of the RUC v A [2000] NI 261; King v Great Britain-China Centre [1992] ICR 516; Zafar v Glasgow City Council [1998] IRLR 36; De Souza v Automobile Association [1986] ICR 514; Barclays Bank Plc v Kapur [1989] IRLR 387; Ministry of Defence v Jeremiah [1980] QB 87; Advocate General v MacDonald 2001 SC 1; Pearce v Governing Body of Mayfield School [2001] EWCA Civ 1347; [2002] ICR 198; Aziz v Trinity Street Taxis Ltd [1989] QB 463; Nagarajan v London Regional Transport [2000] 1 AC 501; Wallace v South Eastern Education & Library Board [1980] IRLR 193; R v Immigration Appeal Tribunal, Ex p Kassam [1980] 1 WLR 1037; Chief Constable of West Yorkshire v Vento [2001] IRLR 124; Meek v City of Birmingham District Council [1987] IRLR 250; Hazelhurst v Governors of Warwick Park School [2001] EWCA Civ 2056

Legislations

Sex Discrimination Act 1975: s.1, s.4, s.5, s.6

Sex Discrimination (Northern Ireland) Order 1976: Art.3, Art.7, Art.8

Race Relations Act 1976: s.1, s.2, s.4

Authors and other references

Daniel Peyton, Sex and Race Discrimination

Sandra Fredman, Discrimination Law


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