Case round-ups

Case round-ups by Eversheds 020 7919 4500

Is a like-for-like job comparison enough to establish discrimination?
Shamoon v Chief Constable of the Royal Ulster Constabulary (Northern
Ireland), House of Lords [2003] All ER (D) 410

Shamoon was a chief inspector in the Urban Traffic Division of the Royal
Ulster Constabulary (RUC). Following criticisms of her staff appraisals, she
was removed from her appraisal role, although male chief inspectors in other
traffic divisions (who had not been similarly criticised) continued to do
appraisals.

Shamoon claimed the removal of her responsibilities constituted less
favourable treatment (under the Sex Discrimination (Northern Ireland) Order
1976, which largely replicates the Sex Discrimination Act 1976). She pointed to
the male chief inspectors as appropriate comparators and to their different
treatment as evidence of discrimination. The tribunal accepted that approach,
and found in her favour, but on appeal, that view was overturned. Shamoon
appealed to the House of Lords.

The appeal was dismissed. In discrimination cases, tribunals often consider
the difference in treatment of a comparator before going on to consider whether
the claimant’s less favourable treatment arose due to discrimination.

In many cases, however, such a two-tiered approach is inappropriate. To
determine whether the other chief inspectors were appropriate comparators in
this case, the tribunal could not avoid addressing whether Shamoon was treated
as she was on the grounds of her sex. By failing to do so, it did not consider
how a male chief inspector in the same circumstances as Shamoon would have been
treated – her colleagues’ circumstances were different in that they had not
been subjected to complaints. The House of Lords therefore held there was no
evidence in the tribunal’s decision which justified a finding that the
treatment received by Shamoon was on the grounds of her sex.

Procedure, procedure, procedure…
Re P, House of Lords, [2003] UKHL 8

The statutory requirements in respect of strike action are comprehensive,
but mistakes do occur. P (whose identity is protected) was a school pupil. Due
to his behaviour, he was permanently expelled from class but was later
reinstated on appeal.

Following a successful ballot by NASUWT in favour of strike action, P was
taught separately. He subsequently brought a claim against the trade union
alleging that its statutory immunity from such actions was lost because the
teacher’s concerns did not constitute a "trade dispute" (as required
by TULCRA 1992). He also contended that the ballot for industrial action was
flawed as the union had overlooked two recent joiners. P was unsuccessful all
the way to the House of Lords.

The appeal was dismissed. The statutory definition of a trade dispute covers
any genuine dispute between employers and employees relating wholly or mainly
to the job the staff are employed to do, or the terms and conditions on which
they are employed. Also, although the number of union members at the school was
small and it would not have been difficult for the trade union to ensure all
appropriate recipients received their ballot papers, an immaterial and
accidental failure to send a single ballot paper should not reasonably
invalidate a ballot. Such failures should not reasonably be fatal and in this
case the two omissions made no practical difference to the result.

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