Sex discrimination comparators

Shamoon v Chief Constable of the Royal Ulster Constabulary (H of L TLR 4 March)

The applicant was a chief inspector in the RUC, which operated a staff appraisal scheme. Previously, superintendents had acted as counselling officers, but by 1997 it had become the practice that chief inspectors did the counselling of constables. In 1997, complaints had been made by two constables about the claimant’s appraisals of them, as a result of which the applicant’s superintendent had promised that thenceforth he would do the appraisals. The applicant objected that her male colleagues of equal rank were still doing appraisals. The tribunal, on her complaint of unlawful discrimination on the grounds of her sex, had concluded unanimously that she had been unfavourably treated. The Court of Appeal had set aside the finding on the grounds of the failure of the tribunal to explain why they took the view that the applicant had been treated differently because she was a woman. The House of Lords, although upholding the Court of Appeal’s decision, found that it had been wrong not to acknowledge that the issue of less favourable treatment can be examined hypothetically; its requirement that it had to be shown that at least one other person whose circumstances were in fact comparable to those of the complainant had been treated differently, introduced a step into the exercise not found in the legislation.