Employment law

Sex discrimination Shamoon v Chief Constable of the Royal Ulster Constabulary (2001) IRLR 520The editor of the IRLR suggests that this decision of the Northern Ireland Court of Appeal 'tends to undermine the purpose of anti-discrimination legislation'.

The question was whether a female chief inspector had been subjected to a 'detriment' when her superior officer decided that she would no longer conduct appraisals on constables.

The Court of Appeal took the view that, on the correct interpretation of the statutory language, no tribunal properly applying the law could conclude that the applicant had suffered a 'detriment'.

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.

This view accords with the Court of Appeal's view in Barclays Bank plc v Kapur (No.

2) (1995) IRLR 87, that is to say, that an unjustified sense of grievance cannot amount to a detriment.

In any event, the tribunal had erred in law in finding that the other two chief inspectors in the applicant's division were proper comparators for determining whether she had been treated less favourably than a man was or would have been treated.

In the absence of evidence of a regular way in which persons in the same circumstances were treated, a complainant 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.

The circumstances which are relevant are those upon which a reasonable person would place some weight in determining how to treat another.

Here, the tribunal regarded the other chief inspectors as comparators, because they held similar rank and carried similar responsibilities in their regions.

However, there were other circumstances in the applicant's case which did not apply to the other chief inspectors, namely that complaints had been made against her about her conduct of the appraisals and that representations had been made by the Police Federation about that matter.

Those were circumstances which could not be ignored in comparing the applicant with the other chief inspectors; the latter were not valid comparators.Directors as employeesConnolly v Sellers Arenascene Ltd (2001) ICR 760The Court of Appeal has confirmed that a position as the controlling shareholder of a company is not incompatible with the status of an employee.

Nor are skills as an entrepreneur or a situation in which a person stands to gain if the company prospers.

Although the fact that an individual has a controlling shareholding in a company is a significant factor in determining whether he is an employee of that company, a tribunal had been wrong to attach to that fact a significance which included proper consideration of other relevant factors.The only legitimate conclusion in the circumstances of the case was that the applicant was an employee as well as a controlling shareholder.

Secretary of State for Trade & Industry v Bottrill (1999) ICR 592 was followed.

By Martin Edwards, Mace & Jones, Liverpool