Claimants for sexual discrimination must have an appropriate actual or
hypothetical comparator to back up their case. Otherwise, the claim will prove
unsuccessful
Three managers at the same level
traditionally had responsibility for staff appraisals, although they actually
have no right to carry them out. Two are male, one is female, and complaints
were made about the female by those being assessed. One complaint was upheld,
and a further one was pursued by the staff representative. The managing
director decided to remove respons-ibility for staff appraisals from the female
manager, who then brought a claim of sex discrimination. Discuss.
These were the facts in Shamoon v Chief Constable of the Royal Ulster Constabulary,
2003, IRLR 285, as considered by the House of Lords, in what is likely to be
the leading decision on sex discrimination this year. Some managers would be
relieved to lose responsibility for time-consuming staff appraisals. But what
is fairly fundamental here, is whether taking this duty away can actually be
regarded as a detriment: no detriment, no discrimination.
The Court of Appeal decided there was no detriment because, following the
EAT decision in Lord Chancellor v Coker, 2001, IRLR 116, there had to be some
material and substantial physical or economic effect on the employee.
The House of Lords disagreed. The test of detriment is that a reasonable
worker would feel they had been disadvantaged at work. An unjustified grievance
is not enough. Taking away responsibility for appraisals would reasonably lead
a manager to feel they were being demeaned in the eyes of their subordinates.
But, of course, suffering a detriment is not enough to prove sex
discrimination. The female manager had to show she had been treated less
favourably than an appropriate comparator, because of her sex. The tribunal
decided the male managers were appropriate comparators. It concluded she had
been treated less favourably because of her sex, and supported her claim.
If you find that odd, the House of Lords would agree with you.
The male managers were not appropriate comparators, because their circumstances
were different to those of the female manager, as complaints had not been made
about either of them.
So, who should be the comparator? The Court of Appeal decided that unless
there was was a true comparator with the female manager (a male manager who had
had complaints made against him), the sex discrimination claim would fail.
This approach would make it impossible to bring successful sex
discrimination claims in most cases – there is rarely a comparator in exactly
the same circumstances as the complainant.
The House of Lords confirmed that if there is no actual comparator, a
‘hypothetical comparator’ should be used – for instance, if there had been a
male manager who had had complaints made against him, would he have been
treated differently?
Clearly this was a difficult question to answer. The House of Lords decided
that instead of tying itself in knots, it would be more helpful to ask why the
female manager was subjected to a detriment. If she were treated detrimentally
because of her sex, it would then be obvious that she had been treated less
favourably than a male manager would have been in the same circumstances.
This is where the thorny issue of inferences comes in; was there any
background evidence to suggest she had been treated detrimentally because of
her sex?
There might be someone else whose circumstances were not exactly the same as
the female manager’s, but whose treatment could still indicate whether she was
treated that way because of her sex. Or the MD might have made some
discriminatory comment about the female manager on some other occasion.
In this case, however, there was no evidence from which the tribunal could
infer that the detriment was due to her sex. There-fore, Shamoon lost her
claim.
However, in other cases, it is possible for claimants to successfully prove
sex discrimination without having to go into the issue of a comparator, simply
by showing that the treatment was due to their sex.
By Jill Kelly, Associate, Clarks
Key points
– The test of detriment is whether a reasonable worker would
feel disadvantaged at work
– If there is no comparator with the claimant, a hypothetical
comparator must be used
– Deciding the reason for the treatment will show whether it
was less favourable than treatment of a comparator
