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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Relaxion Group Plc v Rhys-Harper [2003] UKHL 33 (19 June 2003) URL: http://www.bailii.org/uk/cases/UKHL/2003/33.html Cite as: [2003] ICR 867, [2003] 2 CMLR 44, [2003] UKHL 33, [2003] IRLR 484, (2003) 74 BMLR 109, [2003] 4 All ER 1113 |
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Relaxion Group plc (Respondents) v. Rhys-Harper (FC) (Appellant), D'Souza (Appellant) v. London Borough of Lambeth (Respondents), Jones (Appellant) v. 3M Healthcare Limited (Respondents) and three other actions
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32. The European Court held that the 'principle of effective judicial control' laid down in article 6 would be deprived of an essential part of its effectiveness if the protection afforded did not cover retaliatory steps. Fear of such retaliation, if no legal redress were available, might deter employees from pursuing sex discrimination claims. That would be liable seriously to jeopardise the aim of the Equal Treatment Directive. The court rejected the United Kingdom government's argument that retaliatory steps were outside the scope of the directive if taken after the employment relationship had ended: see Coote v Granada Hospitality Ltd [1999] ICR 100.
33. The Employment Appeal Tribunal then resumed its hearing of Ms Coote's appeal: Coote v Granada Hospitality Ltd (No 2) [1999] ICR 942. In the light of the judgment of the European Court the appeal tribunal, presided over by Morison J, declined to follow Adekeye's case. The phrase 'in the case of a woman employed by him' in section 6(2) of the Sex Discrimination Act was capable of embracing the case of a woman 'who has been employed by him'. Thus it was possible to construe section 6(2) in a way which would conform with the Equal Treatment Directive as authoritatively interpreted by the European Court. Section 6(2) should be so interpreted. Accordingly, the employment tribunal had jurisdiction to entertain Ms Coote's claim even though the act of victimisation of which she complained had occurred after her dismissal.
The interpretation of the legislation: 'employed by him' and 'whom he employs' 34. Two points relevant to the interpretation of the legislation are tolerably clear. First, the decisions in Adekeye's case and Coote v Granada Hospitality Ltd (No 2) are inconsistent. Coote's case was a case of victimisation, Adekeye's case seemingly was not. But, for the purpose now in hand, it is not possible to differentiate between victimisation and other forms of discrimination. Section 6(2) of the Sex Discrimination Act, containing the phrase 'employed by him', is a single provision governing all forms of discrimination prohibited by that subsection. The proper interpretation of section 6(2), whatever it may be, applies equally to all forms of discrimination prohibited by that subsection, sex discrimination as defined in sections 1 and 2 as well as victimisation as defined in section 4. The position is the same under section 4(2) of the Race Relations Act and section 4(2) of the Disability Discrimination Act. 35. Next, although this may be more controversial, section 6(2) of the Sex Discrimination Act, section 4(2) of the Race Relations Act and section 4(2) of the Disability Discrimination Act all bear the same meaning on the point now in issue. (In saying this I am leaving aside for the moment any special implications the Equal Treatment Directive may have on the interpretation of the Sex Discrimination Act.) The only distinction between the language of these three Acts is the distinction already mentioned: the Sex Discrimination Act and the Race Relations Act use the phrase 'employed by him', and the Disability Discrimination Act uses the expression 'whom he employs'. I consider this is a distinction without a difference. In the context of section 6(2) of the Sex Discrimination Act and section 4(2) of the Race Relations Act, the phrase 'employed by him', although ambiguous, is more naturally to be read as having the meaning adopted when the phrase was reproduced in section 4(2) of the Disability Discrimination Act: a person 'whom he employs'. 36. Translated into practical terms, where does this lead? The context in which these expressions are used includes benefits arising from a contract of employment. A contract of employment creates an employment relationship between two persons, an employer and an employee. It is a matter of ordinary experience that incidents of the employment relationship thus created often continue beyond the termination of the contract of employment which gave rise to the relationship. When a contract of employment ends the employee ceases to be obliged to work for the employer, and the employer ceases to be obliged to employ the employee. But the ending of these obligations does not normally signify a complete end to all aspects of the relationship between employer and employee. Frequently contractual obligations, express or implied, accrue or continue after the period of employment has come to an end. An employee may be subject to obligations of confidentiality or restrictions on where he may work or for whom he may work. An employer may be subject to obligations regarding pension rights or bonus payments. These obligations are matters of contractual right. Frequently also, an employee continues to enjoy, although not as a matter of contractual entitlement, other benefits arising in respect of his employment. One important example, of everyday occurrence, is the opportunity to obtain a reference to assist the employee in obtaining a new job. Another example is the employee's opportunity to have recourse to internal appeal or grievance procedures in respect of his dismissal. Sometimes this is a matter of contractual right, sometimes not. 37. To my mind the natural and proper interpretation of section 6(2) of the Sex Discrimination Act and the corresponding provisions in the other two Acts in this context is that once two persons enter into the relationship of employer and employee, the employee is intended to be protected against discrimination by the employer in respect of all the benefits arising from that relationship. The statutory provisions are concerned with the manner in which the employer conducts himself, vis-à-vis the employee, with regard to all the benefits arising from his employment, whether as a matter of strict legal entitlement or not. This being the purpose, it would make no sense to draw an arbitrary line at the precise moment when the contract of employment ends, protecting the employee against discrimination in respect of all benefits up to that point but in respect of none thereafter. 38. If such a hard and fast line were drawn at this point it would mean that the employee who asks for a reference before he retires from his employment is protected but the employee who asks for a reference the day after he left is not. It would mean that the employee who is dismissed with notice and whose appeal is heard before his notice expires is protected against discrimination in his recourse to the employer's appeal procedure, but the employee who is dismissed summarily and without notice is not. It would mean that retaliatory action taken by an employer before the contract of employment ends is within the scope of the legislation, but retaliatory action taken later, for instance, regarding bonus payments, is not. 39. This cannot have been the intention of Parliament. Dismissal is one of the matters in respect of which discrimination is expressly prohibited by the statutes. Parliament cannot have intended that this prohibition should include an appeal decision regarding dismissal if the appeal is heard before the dismissal takes effect but not if it is heard later. That would be palpably absurd. Dismissal cannot have been intended to have such an artificially limited meaning. Nor can it have been intended that reprisals may be exacted, so long as they are postponed until after the employee has been dismissed. Nor can a sensible distinction be drawn between giving a reference the day before employment ends and giving a reference the day after. 40. I recognise that a line has to be drawn somewhere between what is prohibited and what is not. I recognise also the pioneering character of the anti-discrimination legislation. Parliament may well have chosen to advance cautiously, one step at a time, while experience accumulates on the practical working of the legislation and guidance is forthcoming from the expert commissions entrusted with the task of keeping the law under review. But these considerations do not point to the conclusion that, when enacting this new form of legislation, Parliament intended to ban discrimination in respect of some of the benefits in respect of an employee's employment but not others, with the distinction between the two categories being self-evidently capricious. 41. Nor am I impressed with the argument that prohibiting post-termination acts of discrimination would expose employers to 'long tail' liability. Fears have been expressed about the potentially burdensome nature of this liability regarding, in particular, the provision of references. Liability in respect of post-termination acts of discrimination would, it is said, enable a discontented former employee to harass his former employer, perhaps years later, when he is provided with an unfavourable reference or a reference is refused altogether. 42. There are several strands interwoven in this expression of concern. They must be separated and considered one by one. First, whenever an employer gives a reference for a person currently employed by him he is subject to common law duties of care as well as statutory non-discrimination obligations. I can see no reason why in this regard the position should be different, or regarded as more onerous, if a reference is provided for a former employee as distinct from a current employee. If an employer provides a reference for a former employee he must do so as fairly as he would for a current employee. Second, regarding refusal to provide a reference, the question of discrimination can only arise if the employer's normal practice is to provide references for former employees on request. If that is the employer's practice, there is surely nothing burdensome in requiring him not to discriminate in the way he implements this practice. He must not treat one former employee less favourably than another on grounds of sex or race or disability or by way of victimisation. If, however, it is not the employer's practice to give references for former employees, for example, after the lapse of a certain time, then refusal of a reference after that time cannot give rise to a well founded discrimination claim. In such a case there would be no question of the employer subjecting the former employee to a detriment. Third, the prospect of former employers being harassed with unfounded, vexatious claims cannot be a good reason for refusing to entertain well founded claims. The appropriate response to this understandable concern of employers is for employment tribunals to be alert to strike out manifestly ill founded claims as vexatious. 43. For these reasons I respectfully disagree with the decision in Adekeye's case. I understand the reasoning which attracted the Court of Appeal. But I consider this reasoning attaches insufficient importance to the capricious results which follow from a too literal interpretation of the statutory language. The Adekeye interpretation is insufficiently purposive. It pays insufficient heed to the context. 44. The preferable approach is to recognise that in each of the relevant statutory provisions the employment relationship is the feature which triggers the employer's obligation not to discriminate in the stated respects. This is the connection between two persons which Parliament has identified as requisite for these purposes. Once triggered, the obligation not to discriminate applies to all the incidents of the employment relationship, whenever precisely they arise. For the reasons already given, this obligation cannot sensibly be regarded as confined to the precise duration of the period of employment if there are incidents of the employment which fall to be dealt with after the employment has ended. Some benefits accrue during the period of employment, some afterwards. For the purposes of discrimination, there is no rational ground for distinguishing the one from the other. They all arise equally from the employee's employment. 45. To be an 'incident' of the employment relationship for this purpose the benefit in question must arise between employer or former employer as such and employee or former employee as such. A reference is a prime example. Further, save perhaps in exceptional circumstances which it is difficult to envisage, failure to provide a non-contractual benefit will not constitute a 'detriment', or discrimination in an opportunity to receive a 'benefit', within the meaning of the anti-discrimination legislation unless the non-contractual benefit in question is one which normally is provided, or would be provided, to others in comparable circumstances. This is so with regard to current employees. It is equally so with former employees. But I stress this is not to say that an employer's practice regarding current employees is to be treated as equally applicable to former employees. This is emphatically not so. The two situations are not comparable. What is comparable is the way the employer treats the claimant former employee and the normal way he treats or would treat other former employees in similar circumstances. 46. I add, as a footnote, that the question whether the section 6 duty imposed by the Disability Discrimination Act continues after the termination of the contract of employment is a separate question which does not call for decision on these appeals. I prefer to leave that question open.The appeals 47. I would therefore allow the appeal concerning the four disability discrimination cases. The Employment Tribunal has jurisdiction to consider each of these four victimisation claims. 48. I would also allow Ms Rhys-Harper's appeal in the sex discrimination case. Whether Ms Rhys-Harper's claim has any reasonable prospect of success is not a relevant consideration on the issue of jurisdiction which alone is the issue under consideration by the House. I should add, in the context of this claim under the Sex Discrimination Act, that I have reached the conclusion expressed above on the proper interpretation of all three Acts without regard to the impact of the Equal Treatment Directive or the decision of the European Court in Coote v Granada Hospitality Ltd (No 2) [1999] ICR 942. Having regard to the conclusion I have reached, it is not necessary to consider the issues arising out of the Equal Treatment Directive. 49. In the racial discrimination case the London Borough of Lambeth has another string to its bow in seeking to resist Mr D'Souza's claim on jurisdictional grounds. It will be recalled that the basis of Mr D'Souza's claim is that the council discriminated against him by refusing to reinstate him as ordered by the employment tribunal. This raises the question whether such a refusal is conduct falling within section 4 of the Race Relations Act. 50. I can deal with this issue quite shortly. The effect of the relevant legislation can be summarised as follows. An order for reinstatement made by an employment tribunal is an order that the employer shall treat the employee in all respects as if he had not been dismissed. It is one of the orders an employment tribunal may make, in the exercise of its discretion, if it upholds an employee's complaint that he was unfairly dismissed. If an employer fails to reinstate an employee as ordered the tribunal is required to make an award of compensation for wrongful dismissal, with an additional award where the employer fails to satisfy the tribunal that it was not practicable to comply with the order: see sections 68, 69 and 71 of the Employment Protection (Consolidation) Act 1978, now sections 112, 113, 114 and 117 of the Employment Rights Act 1996. 51. In my view the benefit acquired by an employee from a reinstatement order cannot be regarded as a benefit within the meaning of section 4(2) of the Race Relations Act. It does not arise from the employment relationship. It derives from an order of the tribunal, made in the exercise of its discretion, after the employee has been unfairly dismissed. Such an order is a discretionary statutory remedy for unfair dismissal, attracting its own sanctions in the event of non-compliance. Nor, for the like reason, can the employer's failure to comply with the order be regarded as a detriment within section 4(2). 52. Nor does the case fall within section 4(1). Lambeth's conduct is not readily characterised as 'deliberately omitting to offer' Mr D'Souza employment within the meaning of section 4(1)(c). The nature of Lambeth's act was different. Lambeth was not in the normal position of a prospective employer. What Lambeth did was to fail to comply with a tribunal order which required the council to restore an employee to the employment from which he had been dismissed. That characterisation, coupled with the feature that the statute itself provides remedies for non-compliance with a reinstatement order, points strongly away from this circumstance being within section 4(1)(c) of the Race Relations Act. I would so hold. 53. Since, then, the discriminatory conduct alleged by Mr D'Souza does not fall within the ambit of section 4 of the Race Relations Act, the employment tribunal has no jurisdiction to entertain his complaint. For this reason I would dismiss Mr D'Souza's appeal.LORD HOPE OF CRAIGHEAD My Lords, 54. These three appeals raise an important point about the present state of the law which prohibits discrimination in the field of employment. Common to all three is an issue of statutory construction. In three separate enactments Parliament has made it unlawful for employers to discriminate on the grounds of sex, race and disability. It is not in doubt that statutory protection against discrimination and victimisation has been given to prospective and existing employees. The area of doubt to which these appeals have been directed relates to the position of ex-employees. The question is whether the statutory protection extends to persons who are no longer employed by the employer and, if so, in what circumstances. 55. There are two other questions each of which affects one appeal only which also need to be answered. In order to set the scene I must first set out the facts which have provided the background to your Lordships' examination of all these issues.The facts
(1) Rhys-Harper v Relaxion Group plc 56. The appellant, Christine Lillian Rhys-Harper, was employed by the respondent in November 1997 as a lifeguard and general assistant at the Helston Sports Centre. On 3 October 1998 an incident occurred there as a result of which a complaint was made to her employers that the appellant had been rude to customers. She was suspended from her duties, and on 12 October 1998 the manager of the Centre, Mr Osborn, conducted a disciplinary hearing which resulted in a decision that she should be dismissed on the ground of misconduct. Her dismissal was confirmed by Mr Osborn by a letter dated 15 October 1998, in which he told her that she would be receiving one week's pay in lieu of notice. She exercised her right of appeal under the respondent's disciplinary procedure. 57. The appeal hearing was conducted by the respondent's general manager, Mr Adamson. It took place on 9 November 1998. In the course of the hearing the appellant alleged that throughout her employment she had been regularly subjected to sexual harassment by Mr Osborn. Following the appeal hearing the appellant received two letters from Mr Adamson. In the first, which was undated, he told her that, having investigated the events, the company had found that there were sufficient grounds to dismiss her and that the decision to do so was to stand. In the second, which was dated 30 November 1998, he told her that the company had carried out a full and thorough investigation into her allegation of sexual harassment against Mr Osborn at the appeal hearing and that the company's finding was that there was insufficient evidence to establish a case against him. 58. On 18 February 1999 the appellant presented an application to the Employment Tribunal for unfair dismissal and sex discrimination. In her claim of sex discrimination she complained of sexual harassment and that the allegation relating to this matter which she had made at the appeal hearing had not been properly investigated. The tribunal referred the matter to a preliminary hearing to determine whether these claims had been lodged within the prescribed three months time limit. A majority of the tribunal, the Chairman dissenting, held that she had been dismissed on 30 November 1998, that the decision following the investigation into the allegation of sexual harassment could amount to continuing discrimination and that the claims of unfair dismissal and sex discrimination had been brought in time. 59. The respondent appealed to the Employment Appeal Tribunal, which held that the appellant's employment terminated on 22 October 1998 at the end of her period of one week's notice and that her claim for unfair dismissal was out of time. It also held that it had no jurisdiction to consider her allegation of sex discrimination in regard to the alleged failure by the respondent to carry out a proper investigation of her allegation of sexual harassment as the discriminatory conduct was alleged to have occurred after her employment had ended. The appellant appealed on the question of jurisdiction only, but her appeal on this point was dismissed by the Court of Appeal (Pill, Mantell and Buxton LJJ): [2001] EWCA Civ 634; [2001] ICR 1176. 60. The relevant provisions of the Sex Discrimination Act 1975 (section 1 of which as originally enacted has been substituted by regulation 3 of the Sex Discrimination (Indirect Discrimination and Burden of Proof) Regulations 2001, (SI 2001/2660) are as follows:
(2) Donald D'Souza v London Borough of Lambeth 61. The appellant, Donald D'Souza, was employed by the respondents until his dismissal in January 1990. His complaint is of racial discrimination and victimisation under section 4(2), or alternatively under section 4(1), of the Race Relations Act 1996. 62. On 11 April 1990, following his dismissal, the appellant commenced proceedings against the respondents in which he alleged unfair dismissal, race discrimination and victimisation. On 16 November 1992 the Employment Tribunal held that he had been unfairly dismissed within the meaning of section 57 of the Employment Protection (Consolidation) Act 1978 and that he had been unlawfully discriminated against on racial grounds and victimised within the meaning of the Race Relations Act 1976. The tribunal ordered the respondents to reinstate him by 16 January 1993. On 25 March 1993 the respondents informed the appellant that they were not willing to do so. The appellant made a further application for reinstatement on 31 July 1995, in response to which the respondent claimed that the relationship between them had broken down and that the post which he had previously occupied was no longer available. On 14 August 1995 the tribunal determined that it had not been reasonably practicable for the respondents to reinstate him, and it declined to make an award of compensation for the failure to reinstate under section 71(2)(b) of the 1978 Act. But on 18 October 1995 the tribunal made an award of compensation for the unfair dismissal, having regard to the fact that he was not reinstated. 63. In the meantime on 1 July 1995 the appellant commenced separate proceedings in which he claimed that the original decision not to reinstate him was caused by discrimination and victimisation. It is these proceedings with which this appeal is concerned. 64. On 14 March 1996 the tribunal determined that it had no jurisdiction to hear these complaints, as a person who was seeking to be restored to his former employment was not within the categories of persons who are protected against racial discrimination and victimisation under the Race Relations Act 1976. That decision was affirmed by the Employment Appeal Tribunal, and an appeal against its decision was dismissed by the Court of Appeal (Schiemann and Robert Walker LJJ and Lloyd J) on 25 May 2001: [2001] EWCA Civ 794. 65. The relevant provisions of the Race Relations Act 1976 are as follows:
(3) Nicholas Kirker v British Sugar plc and Others |
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66. This is a group of four appeals all of which raise the same question about the right to compensation for post-employment victimisation under section 4(2) of the Disability Discrimination Act 1995. In summary the facts in each of these cases is as follows:
Nicholas Kirker 67. The appellant has very poor eyesight, which has made him eligible for full registration as a blind person. He was employed by British Sugar plc at Newark as a shift chemist but was dismissed for redundancy on 17 March 1997. He claimed that he had been discriminated as a disabled person. His claim was successful in the employment tribunal and upheld by the Employment Appeal Tribunal. On 13 August 1999 he applied for a position as a warehouse operative with Ambitions Personnel and named British Sugar as a referee. The manager at its Newark facility completed and returned the reference questionnaire which Ambitions Personnel had sent to him, but it was apparently not received and the appellant's application was rejected for lack of a reference. When this was brought to his attention the manager sent another copy of it to Ambitions Personnel as the position was still vacant, but the appellant was not appointed to fill the position. On 10 November 1999 he presented an application to the Employment Tribunal alleging disability discrimination against Ambitions Personnel. On 7 February 2000 he applied successfully for British Sugar plc to be joined as second respondent on the ground that it had victimised him by failing to respond to the application for a reference.Gerald Philip Jones 68. The appellant suffers from severe clinical depression. He was dismissed by 3M Healthcare in November 1997. He brought proceedings against them for unfair dismissal and disability discrimination, but they were dismissed on 26 August 1998. On 12 September 1999 he asked 3M Healthcare to return his business cards which he had left in the office when he was dismissed. They refused to return the cards as they considered that they belonged to them. On 14 February 2000 the appellant obtained an order for their return from the county court. On 8 March 2000 he presented an application to the employment tribunal complaining that that his former employers had subjected him to discrimination and victimisation by refusing to return his business cards.Diana Angel 69. The appellant was suffering from back and hip problems when she was dismissed from the post which she had held since July 1993 as a nurse by New Possibilities NHS Trust in July 1998. She claimed that she had been discriminated against on the ground of her disability, and her claim was successful. She then sought employment with Ling Trust. On 12 January 2000 New Possibilities NHS Trust provided a reference to Ling Trust, who decided not to offer her employment. On 16 March 2000 she presented an application to the employment tribunal in which she complained that she had been discriminated against and victimised by New Possibilities NHS Trust by supplying her with an adverse reference.Charmaine Bond 70. The appellant suffers from back injuries which she sustained in a road accident. She was employed by Hackney Citizens' Advice Bureau until she was made redundant in October 1994. On 8 November 1999 she presented an application to the Employment Tribunal in which she claimed that she had been victimised because of her disability. On 6 June 2000 she presented a further application alleging that her former employer had victimised her by refusing to supply her with a reference and giving false information in reply to enquiries by two companies which had insured her property in respect of mortgage repayments. 71. The Employment Tribunal held that it had no jurisdiction to consider the appellants' claims of victimisation under the 1995 Act, on the ground that section 4(2) of the Act applied to employees during the course of their employment only and did not extend to persons who were no longer employed on the date when the alleged act of victimisation took place. These decisions were upheld by the Employment Appeal Tribunal. The appellants appealed, but their appeals were dismissed by the Court of Appeal (Pill, Mummery and Latham LJJ): [2002] ICR 341. 72. The relevant provisions of the Disability Discrimination Act 1995 are as follows:
The principal issue 73. Section 62(1) of the Sex Discrimination Act 1975 provides that a contravention of the Act shall incur as such no sanction, whether civil or criminal, except to the extent (if any) expressly provided by that Act. Section 63(1) of that Act provides that a complaint by any person that another person has committed an act of discrimination against the complainant which is unlawful by virtue of Part II of the Act may be presented to an employment tribunal, and section 65 sets out the remedies that may be given by the tribunal if it finds that a complaint presented under section 63 is well founded. Provisions to the same effect are to be found in sections 53, 54 and 56 of the Race Relations Act 1976 and in section 8 of the Disability Discrimination Act 1995. The effect of these provisions is that complaints of discrimination on grounds of sex, race and disability in the employment field must be presented to an employment tribunal. The question of law which is common to all these cases is whether the employment tribunal has jurisdiction to consider a complaint of discrimination which relates to only acts which are alleged to have taken place after the complainant's employment has come to an end. 74. The answer to this question depends on the meaning which is to be given in its context to the phrase "employed by him" in section 6(2) of the Sex Discrimination Act 1975 and section 4(2) of the Race Relations Act 1976 and to the phrase "whom he employs" in section 4(2) of the Disability Discrimination Act 1995. As Lord Bingham of Cornhill observed in Anyanwu v South Bank Student Union [2001] 1 WLR 638, 640, this is a trio of Acts which contain similar provisions, although they are directed to different forms of discrimination. It is plain that, when Parliament used the same phrase "employed by him" in section 4(2) of the Race Relations Act 1976 as it used in section 6(2) of the Sex Discrimination Act 1975, it must have intended that it should be given the same meaning in each of these two Acts. The wording of the equivalent phrase in section 4(2) of the Disability Discrimination Act 1995 is slightly different, and there are other differences in the layout and wording of that Act in comparison with the Acts which deal with discrimination on the grounds of sex and race. So it will be necessary to consider the meaning which is to be given to the phrase in the 1995 Act separately. 75. At the end of the hearing of the appeal in Mrs Rhys-Harper's case a further issue was raised by Mr Reynold QC on her behalf. Her complaint had been presented hitherto as a complaint about discrimination after the employment relationship had ended. But in his closing speech Mr Reynold submitted that, as her allegation of sexual harassment was made in the course of her appeal against dismissal, her complaint had a direct bearing on the part played by Mr Adamson who investigated and rejected that complaint and was the decision-taker in her appeal against her dismissal. He accepted that the nexus between her complaint of sexual discrimination investigation in his handling of that allegation and his decision in the appeal against dismissal had not been made clear previously. The point which he sought now to put in issue was that, on a correct analysis of the facts, this was a case of continuing discrimination by victimisation which could be related to the employer's act in dismissing her. 76. In Mrs Rhys-Harper's case it will also be necessary to take account of the fact that the Sex Discrimination Act 1975 gave effect in domestic law to Council Directive 76/207/EEC ("the Equal Treatment Directive"). This is a feature which is absent from the other two cases, as the legislation which dealt with discrimination on grounds of race and disability had no equivalent base under the EC Treaty when it was enacted. Council Directive 2000/43/EEC ("the Race Directive") was adopted under article 13 of the EC Treaty by the United Kingdom and other member states in 2000, but it does not have to be implemented until 19 July 2003. The Community has not yet turned its attention to discrimination in the employment field on the ground of disability. 77. A further question of law is raised by the case of D'Souza, as he has an alternative argument that the decision of his former employer not to reinstate him when ordered to do so by the Employment Tribunal was a breach of section 4(1) of the Race Relations Act 1976. The question is whether, when it refused to do so, his employer was "refusing or omitting to offer him" that employment within the meaning of section 4(1)(c) of that Act.A brief history of the legislation 78. It is a remarkable fact that, although discrimination on whatever grounds is widely regarded as morally unacceptable, the common law was unable to provide a sound basis for removing it from situations where those who were vulnerable to discrimination were at risk and ensuring that all people were treated equally. Experience has taught us that this is a matter which can only be dealt with by legislation, and that it requires careful regulation by Parliament. The Community has adopted the same approach in its promotion of the principle of equal treatment as part of its social action programme. The fact is that the principle of equal treatment is easy to state but difficult to apply in practice. In the result the legislation which is under scrutiny in these appeals is designed to be specific and particular rather than universal in its application, and it is still being developed incrementally. It must, of course, be construed purposively, as Waite LJ said in Jones v Tower Boot Co Ltd [1997] ICR 254, 261-262. But the scope to be given to the legislation is essentially a matter for Parliament. The question which lies at the heart of these appeals is what its intention was when it enacted the provisions in each of these three Acts which deal with discrimination by employers against applicants and employees. 79. The Sex Discrimination Act 1975 was designed to give effect to the principles contained in the White Paper Equality for Women (Cmnd 5724) of September 1974. The White Paper stated that the government's ultimate aim was to harmonise the powers and provisions for sex and race discrimination so as to secure genuine equality of opportunity in both fields. It made unlawful discrimination across a wide range of activities in the employment and social fields on the ground of sex and marital status. It drew on experience of the workings of the Race Relations Act 1968 and the Equal Pay Act 1970. In the field of employment it prohibited discrimination in the offering of and other acts preparatory to entering into a contract of employment. It also extended its provisions against discrimination once the contract was entered into to non-contractual aspects of the employment relationship to ensure equality of treatment in the provision of benefits and the avoidance of detriment. The contractual aspects were dealt with by an amendment to section 1(1) of the Equal Pay Act 1970 which substituted for the equal pay clause which was deemed to be included in every contract of employment by that subsection a more broadly framed equality clause. No indication was given in the White Paper of an intention to extend the prohibition to non-contractual acts or omissions by employers once the employment relationship had come to an end, and there is no provision in the Act which expressly addresses this matter. Some indication of the common understanding of the scope of the Act when it was enacted is given by the comment in a general note by the annotator in Current Law Statutes that section 6 "provides the general prohibition of discrimination by an employer between prospective and existing employees." [my emphasis] 80. The Sex Discrimination Act 1975 received the Royal Assent on 12 November 1995. Council Directive 76/207EEC "on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions" was published in the Official Journal on 14 February 1976. The preamble to the Directive referred to the Council's resolution of 21 January 1971 concerning a social action programme for the purpose of achieving equality between men and women as regards access to employment and vocational training and promotion "and as regards working conditions, including pay." It also referred to Council Directive 75/117/EEC on the approximation of the laws of member states relating to the application of the principle of equal pay for men and women and stated that Community action to achieve the principle of equal treatment for men and women in respect of access to employment and vocational training and promotion and "in respect of other working conditions" appeared to be necessary. No amendment to the Sex Discrimination Act 1975 to give effect to this Directive in domestic law was thought to be necessary. 81. The Race Relations Act 1976 was the third enactment dealing with race relations. The first, in 1965, dealt with incitement to racial hatred and made discrimination on racial grounds unlawful in places of public resort. The second, in 1968, widened the prohibition of discrimination to other areas including employment, but it was soon appreciated that further legislation was needed. The 1976 Act too, like the Sex Discrimination Act 1975, was preceded in September 1975 by a White Paper: Racial Discrimination (Cmnd 6234). This White Paper gives no indication of an intention to extend the scope of the prohibition of discrimination to acts or omissions by employers after the employment relationship has come to an end. The language and structure of this Act was closely modelled on the Sex Discrimination Act 1975. Much of the wording of Part II in both Acts about discrimination in the employment field, including the sections which deal with discrimination against applicants and employees, is identical. 82. Provision was made by both of these Acts for keeping the working of the legislation under review. Section 53 of the Sex Discrimination Act 1975 provided for the establishment of the Equal Opportunities Commission, among whose duties was to be to keep under review the working of that Act and the Equal Pay Act 1970 and, when they were so required by the Secretary of State or otherwise think it necessary, to draw up and submit to the Secretary of State proposals for amending them: section 53(1)(c). Section 43 of the Race Relations Act 1976 provided for the establishment of the Commission for Racial Equality with the same duty to keep the working of that Act under review: section 43(1)(c). This legislation has now been in force, and kept under review, for more than a quarter of a century. No amendments have been introduced with a view to making it clear that the prohibition in the employment field extends to acts or omissions by employers after the employment relationship has come to end. 83. The question whether the legislation as originally enacted had that effect, or whether employment must continue to subsist for a person to be "a person employed by him" does not appear to have been raised until the point was argued for the first time before the Employment Appeal Tribunal in Nagarajan v Agnew [1995] ICR 520. In the meantime in De Souza v Automobile Association [1986] ICR 514, 522H May LJ felt able to say that the word "detriment" in section 4(2)(c) of the Race Relations Act 1976 referred to the circumstances in which the person "thereafter has to work." [my emphasis] In Garland v British Rail Engineering Ltd [1983] 2 AC 751 a female employee complained that she was being discriminated against by her employers who operated a scheme which gave concessionary travel facilities to employees and their families. This facility was available to employees after their retirement, but only male employees had the benefit of it after retirement for their families. An issue was raised as to the meaning to be given to the words "provision in relation to death or retirement" in section 6(4) of the Sex Discrimination Act 1975 in the light of article 119 of the EEC Treaty (now article 141 EC). It was held, following a reference to the European Court of Justice, that the scheme was not covered by the exception in section 6(4) because these words should not be construed so widely as to include a privilege which had existed during employment and was allowed by the employer to continue after retirement. The result was that the scheme was subject to the prohibition on discrimination imposed by section 6(2)(a) of the Sex Discrimination Act 1975. An important feature of that case, however, was that the employees were entitled to the benefit of the scheme both before and after their retirement. The issue whether section 6(2) was apt to cover things done or omitted to be done by the employer which could be attributed only to a period after the end of the employment relationship was not raised in that case. 84. In Nagarajan v Agnew [1995] ICR 520 (reported also in [1994] IRLR 61), in which an ex-employee alleged that he had been victimised by a bad reference from his former manager, the Employment Appeal Tribunal held that the natural meaning of the phrase "a person employed by him" in section 4(2) of the Race Relations Act 1976 was that the employment must continue to subsist for the prohibition to apply. Knox J said at p 531 that the whole provision was couched in the present tense and that, if it had been intended to include benefits, facilities or services or detriments post employment, Parliament would certainly have made it explicit that that extended meaning was the correct one and it had not done so. In Post Office v Adekeye [1995] ICR 540 the Employment Appeal Tribunal held, for the same reasons, that the tribunal had not jurisdiction to hear a complaint about racial discrimination at an internal appeal hearing by a person who was pursing an appeal against her dismissal. But Smith J said at p 548E that it was unsatisfactory that the Act did not give a remedy to an ex-employee in such circumstances. The decision by the Employment Appeal Tribunal in that case was given on 15 February 1995. 85. It was against this background that the Disability Discrimination Act 1995 was enacted. It received the Royal Assent on 8 November 1995. Once again the legislation was preceded by a White Paper, Ending discrimination against disabled people, January 1995 (Cm 2729). In paragraph 3.1 it was stated that ensuring full and fair access to employment opportunities was a key element in the government's policy of enabling disabled people to be fully active and independent members of society. In paragraph 3.4 it was stated that a new right of non-discrimination in employment was to apply "in all areas of employment, including recruitment, dismissal, training, career progression, terms of employment and general treatment at work." No indication was given in the White Paper that it was the intention to extend this right to ex-employees to give them a right of non-discrimination by their former employers after the employment relationship had come to an end. Much of the structure and language of Part II of the Act which deals with discrimination by employers follows closely the pattern which is to be found in Part II of the Sex Discrimination Act 1975 and the Race Relations Act 1976, although there are some important differences. In his general note to this Part of the Act the annotator in Current Law Statutes states that the right not to be discriminated against "covers employees and applicants for employment." In his note to section 55, which deals with victimisation, he refers to the report of the decision of the Employment Appeal Tribunal in Nagarajan v Agnew in [1994] IRLR 61 and states that by analogy with that case it seemed likely that the protection against victimisation would be limited to events occurring during the course of employment. This a reminder, if any reminder were needed, that attention had already been drawn to this problem prior to the enactment of the 1995 Act. 86. Parts VI and VII of the Disability Discrimination Act 1995 contain a number of provisions which are designed to assist in the working out of the Act in practice. Section 50 provides for the establishment of the National Disability Council among whose duties was to advise the Secretary of State on matters relating to the operation of the Act or of provisions made under it: section 50(2)(c). Section 53 provides that the Secretary of State may issue codes of practice containing such practical guidance as he considers appropriate with a view to eliminating discrimination in the field of employment against disabled persons and person who have had a disability and encouraging good practice in relation to such persons. This provision was implemented by the issuing of the Disability Discrimination Act 1995 Code of Practice. Paragraph 2.8 answers the question "Who counts as an employee under the Act?" It states that "employee" means anyone whose contract is within the definition of employment in section 68 of the Act, which defines employment as a employment under a contract of service or of apprenticeship or a contract personally to do any work, "whether or not, for example, he works full-time." The guidance which the Code gives with regard to employment relates entirely to prospective and existing employees. There is no indication that the Secretary of State thought that the Act was designed also to deal with the position of ex-employees after the employment relationship had come to an end, and no guidance whatever is offered on this issue. 87. The conclusion which I would draw from this history is that up to this point the issue as to whether the prohibition against discrimination should be, or had been, extended to ex-employees had not been specifically addressed either by the government or by the legislature. None of the advisory bodies established under these Acts have asked to intervene in these appeals. Nor was your Lordships' attention drawn to any published statements by any of them indicating their views, either one way or on the other, on the questions which the appeals have raised. The practical problems to which the competing interpretations of the relevant sections may give rise in the field of employment as a whole have not been explored. 88. In an area which is as sensitive and as wide-ranging in its effects as this one, the absence of information of that kind this is a significant omission. It inhibits the use of the purposive approach in this case, as we have no clear guide to the scope which was intended to be given to the enactments other than the words which they themselves have used to describe it. The extent to which, if at all, the legislation was intended to apply after the ending of the employment relationship was, of course, a matter for the legislature. In this situation I believe that, subject to the guidance of the European Court of Justice as the scope to be given to the Sex Discrimination Act 1975 in the light of Council Directive 76/207/EEC, your Lordships must approach these questions by examining the language which Parliament used in order to discover what its intention was when the statutes were enacted. It is to this task that I now turn.The language of the legislation: introduction 89. The critical words in section 6(2) of the Sex Discrimination Act 1975 and section 4(2) of the Race Relations Act 1976 are "employed by him". In section 4(2) of the Disability Discrimination Act 1995 they are "whom he employs". The question is whether these words extend to cases where the employment relationship had come to an end at the time of the alleged act of discrimination. 90. In Post Office v Adekeye [1997] ICR 110 this question reached the Court of Appeal for the first time. This was an appeal from the decision of the Employment Appeal Tribunal in Adekeye v Post Office [1995] ICR 540. The Court of Appeal held that, in the absence of any express extension of the term "employee" to include a person whose employment had ceased, the words "a person employed by him" in section 4(2) of the Race Relations Act 1975 when given their ordinary and natural meaning in their context excluded a person whose employment had ceased at the time of the act of discrimination. Peter Gibson LJ, with whose judgment Pill and Hirst LJJ agreed, said at p 118:
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91. The Court of Appeal in each of the three cases which are now before your Lordships appears to have had no difficulty in following and applying the decision in Adekeye. In Rhys-Harper v Relaxion Group plc [2001] ICR 1176, 1185, para 25, Buxton LJ said that he found entirely persuasive the conclusion of Peter Gibson LJ that, when one read the words in section 4(2) of the Race Relations Act 1976 which are the equivalent of section 6(2) of the Sex Discrimination Act 1975, it was inescapable that what was addressed was events occurring during the actual course of employment. After quoting the words of section 6(2)(a) he said in para 26:
He said that he agreed with Peter Gibson LJ's conclusion that strong indications of post-contract activity within the events listed in that subsection, going beyond mere possibilities, would be needed in order to compel a reading of 'a person employed by him' in the unnatural sense of a person previously employed. In paragraph 4 of his judgment in D'Souza v London Borough of Lambeth [2001] EWCA Civ 794 Schiemann LJ said that the Court of Appeal at the time regarded the decision in Adekeye [1997] ICR 110 as unsatisfactory but inescapable in the light of the wording of section 4 of the Race Relations Act. He also said that it was fair to point out that, despite that expression of dissatisfaction, Parliament in passing the Race Relations (Amendment) Act 2000, had not seen fit to alter section 4 of the earlier Act in any relevant respect. In paragraph 23 of his judgment in Kirker v British Sugar plc and Others [2002] ICR 1124 Mummery LJ observed the result of his reading of section 4(2) of the Disability Discrimination Act 1995 was consistent with the decisions in Adekeye, Rhys-Harper and D'Souza. But, as he said in para 25, the wording of section 4(2) of the 1995 Act is different from that in the two other discrimination Acts, so it would have been possible for a different view to be taken as its meaning in their case without affecting the construction of the 1995 Act. 92. In para 14 of his judgment in Kirker v British Sugar plc Mummery LJ said that on their plain and ordinary meaning the words of section 4(2) of the 1995 Act expressly conferred protection from discrimination by an employer on only two classes of disabled person: first, job applicants, and, secondly, persons "whom he employs". He referred to the fact that the words "whom he employs" is couched in the present tense, which naturally referred to a contractual employment relationship existing at the date of the commission of any of the particular kinds of act referred to in the subsection all of which were plainly referable to events occurring in the course of an existing employment relationship. It was contended in that case that this result was unsatisfactory, arbitrary and contrary to the statutory purpose of the enactment. In paragraph 21 he responded to this argument in this way:
In D'Souza v London Borough of Lambeth (EAT, unreported, 27 June 2000) he said in para 6:
The language of the legislation: the words themselves 95. What is the meaning which is to be given in its context to the phrase "employed by him" in section 6(2) of the Sex Discrimination Act 1975 and section 4(2) of the Race Relations Act 1976 and to the phrase "whom he employs"y Discrimination Act 1995? I propose to examine this question by stages. I shall start with the wording of section 6(2) of the 1975 Act itself. Then I shall look at other provisions in order to determine how the critical phrase falls to be read in its context. Then I shall look at section 4(2) of the 1976 Act in its context. I shall deal finally with the slightly different wording of section 4(2) of the 1995 Act in its context.(a) Sex Discrimination Act 1975, s 6(2): "employed by him" 96. The word "employed" can serve either as an adjective or as a participle. If it is to serve as an adjective it will be attached to a noun. Here there is no noun, so at least one can say that it is being used in the subsection as a participle. But if it is to serve as a participle, the question whether it is being used as a past participle or as a present participle will depend on the tense of the verb with which it is associated. Here there is no verb. That is not to say that a verb cannot be read in to the subsection. But this requires an understanding of the intention of Parliament, and the participle itself gives no indication as to the tense. So the phrase "employed by him" without more is ambiguous. 97. As soon as one beings to examine the context, however, the ambiguity beings to recede. The phrase "in the case of a woman employed by him at an establishment in Great Britain", taken together with the words "in the way he affords her access to opportunities for promotion, transfer or training" the first part of paragraph (a) indicates beyond doubt that existing employees fall within the phrase "employed by him". But it also suggests that it is only existing employees who do so. This impression is reinforced by the words "by dismissing her" in paragraph (b). If Parliament had intended it to deal with ex-employees as well, one would have expected it to have said so. The reference to "any other benefits, facilities or services" in paragraph (a) and "subjecting her to any other detriment" in paragraph (b) are not so plainly related to things done to existing employees. They could include acts of discrimination after the employment has come to an end, and it is by no means impossible for the subsection as whole to be read in this way. But it is not obvious that this is what Parliament intended. Elsewhere in section 6, subsection (7) states that subsection (2) does not apply to benefits, facilities or services of any description if the employer "is" concerned with the provision of these things to the public, or to a section of the public comprising the woman in question. It then sets out three exceptions to this provision - (a) the provision differs in a material respect from the provision of these things by the employer to "his employees", (b) the provision of these things to the woman "is regulated" by her contract of employment and (c) they relate to training. This provision appears to have been designed on the assumption that the situation with which subsection (2) is dealing is that which applies where the contract of employment is still on foot, not after it has come to an end. 98. Two other provisions in first group of sections in Part II of the 1975 Act which deal with employers indicate that Parliament did not address itself to the position of their ex-employees. Section 9 makes it unlawful for a person to discriminate against a woman who "is a contract worker". Among the things he may not do is discriminate against her in the provision of "any benefits, facilities or services" or by subjecting her to "any other detriment" - phrases that are repeated from section 6(2). An exception is made for benefits, facilities or services if the person "is" concerned with the provision of these things to the public, as in section 6(7). Section 10 deals with the meaning of employment at an establishment in Great Britain in terms which make use throughout of the present tense. The second group of sections in Part II deals with discrimination by other bodies. Section 11 deals with partnerships. It makes it unlawful for a firm to discriminate against a woman who is seeking a position as partner and against a woman "who already holds that position". But it makes no mention of women who are no longer partners but who may - for example - be seeking a reference. Section 12, which deals with membership of trade unions, follows the same pattern. It protects a woman who is applying for membership and a woman who "is" a member of the organisation. But it makes no mention of a woman who is no longer a member. 99. I would hold that, taken overall and when given their ordinary meaning in their context, these provisions indicate that the phrase "employed by him" in section 6(2) of the 1975 Act includes a woman who is employed by the alleged discriminator but that it does not include a woman who is no longer employed by him.Race Relations Act 1976, s 4(2): "employed by him" 100. I can see no grounds for giving a different meaning to the phrase in this context from that which I would give to it in section 6(2) of the Sex Discrimination Act 1975. The wording of section 4(2) of the 1976 Act is precisely the same except that it refers to a person where section 6(2) in the 1975 Act refers to a woman. The wording of section 4(4) of the 1976 Act matches that of section 6(7) of the 1975 Act, and sections 7, 8, 10 and 11 of the 1976 Act deal with contract workers, the meaning of employment at an establishment in Great Britain, partnerships and membership of trade unions in the same way as these matters are dealt with in the corresponding sections of the 1975 Act. 101. So I would that the phrase "employed by him" in section 4(2) of the 1976 Act includes a person who is employed by the alleged discriminator, but that it does not include a person who is no longer employed by him.(c) Disability Discrimination Act 1995, s 4(2): "whom he employs" 102. The first thing that strikes one about the language of this subsection is that it does not use the participle "employed". It uses instead the verb "employs". As my noble and learned friend Lord Rodger of Earlsferry observed in the course of the argument, this was an odd choice of language if the draftsman's instructions were to cover the position of persons who were no longer employed by the alleged discriminator. And it was odd too, if those were his instructions, that this was not picked up during the passage of the Bill through Parliament. So in this case one starts from the position that the ordinary and natural meaning of the phrase is that it includes a person who is employed by the alleged discriminator, but that it does not include a person who is no longer employed by him. The question is whether there is anything in the context which requires that the phrase be read differently so that it includes a person who is no longer employed by the alleged discriminator. 103. I can find nothing in section 4(2) itself which points to a different conclusion. Section 4(3) of the 1995 Act, like its counterparts in sections 6(7) and 4(4) of the 1975 and 1976 Acts, is cast in the present tense. So too are sections 12 and 13 of the 1995 Act which deal with discrimination against contract workers and by trade organisations. There are number of other more subtle indications that the focus of this Act was on applicants for employment and those in employment, not those on those whose employment has come to an end: see, for example, the wording of the exemption for small businesses in section 7. I can find no support anywhere else in the Act for the argument that section 4(2) extends to persons who are no longer in the employment of the alleged discriminator.Community Law 104. In Mrs Rhys-Harper's case it is necessary, as I said earlier (see para 23), to take account of the fact that the Sex Discrimination Act 1975 gave effect in domestic law to Council Directive 76/207/EEC ("the Equal Treatment Directive"). The conclusion which one draws from this exercise may have implications for all the other cases too, as I shall explain later. The Directive does not, of course, have direct effect on the relationship between a woman and her employer. The third paragraph of article 249 of the EC Treaty (formerly article 189 EEC) provides that a directive shall be binding, as to the result to be achieved, upon each member state to which it is addressed but that it shall leave to the national authorities the choice of form and method. So a directive works its way into our domestic system by means of the legislation which is designed to give effect to it. It is then for the courts to interpret that legislation, as far as possible, in a way that gives effect to this country's obligations under the treaty. 105. In Litster v Forth Dry Dock and Engineering Co Ltd [1990] 1 AC 546, 559E-F Lord Oliver of Aylmerton said that the approach to the construction of primary and subordinate legislation enacted to give effect to the United Kingdom's obligations under the EEC treaty was not in doubt:
In Webb v Emo Air Cargo (UK) Ltd [1983] ICR 175, 186 Lord Keith of Kinkel said:
At p 187 he referred to the way in which the European Court in Marleasing SA v La Comercial Internacional de Alimentacion SA (Case C-106/89) [1990] ECR I-4135 expressed the obligation which is binding on the courts in applying national law, whether the provisions in question were adopted before or after the directive:
The European Court took the opportunity in Coote v Granada Hospitality Ltd (Case C-185/97) [1999] ICR100, 111-112, para 18 to re-state this point:
But here too no mention is made of the situation where the employment relationship is at an end. 109. What then is to be said about the purpose of the Directive? Here one must turn for guidance to the decision of the European Court in Coote v Granada Hospitality Ltd [1999] ICR 100. In that case, after settling a sex discrimination claim against her employer, the applicant had left the employer's employment by mutual consent. She then asked the employer to supply a reference to the employment agency through which she was trying to find another job. This was refused. She then brought proceedings against the employer under section 4 of the Sex Discrimination Act 1975, which deals with victimisation, in which she alleged that this response was a reprisal for her previous claim of sex discrimination. 110. The European Court saw this as an issue of judicial protection within the meaning of article 6 of the Directive. It explained its approach in [1999] ICR 100, 112, para 19:
It went on to develop this point in the following paragraphs. 111. The court noted in para 20 that it followed from article 6 that the member states must ensure that the rights conferred by the Directive could be effectively relied on before the national courts by the persons concerned. In para 21 it observed that the requirement laid down by that article reflected a general principle of law which underlies the constitutional traditions common to the member states and which was also enshrined in article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. In para 23 it emphasised that article 6 of the Directive was an essential factor for attaining the fundamental objective of equal treatment for men and women which, as the court had repeatedly held, was one of the fundamental human rights whose observance it had a duty to ensure. In para 24 it said that the principle of effective judicial control which article 6 of the Directive lays down would be deprived of an essential part of its effectiveness if it did not cover measures which the employer took as a reaction to legal proceedings brought by the employee with the aim of enforcing the principle of equal treatment. The conclusion which it expressed in para 25 was that it was not possible to accept the argument that such measures did not fall within the scope of the Directive if they are taken after the employment relationship has ended. 112. It would have been possible for the court to find a more direct answer to the problem in article 5 of the Directive regarding working conditions as indicated by Advocate General Mischo in his opinion at p 104, paras 11-12. He said that an employer's appraisal of the quality of the services rendered fell entirely within the scope of the relationship between employee and employer, and that the service rendered by the employer in providing the employee with what he described as "the parting gift" of a reference could not be severed from the employment relationship. He also said that the conditions regarding dismissal were to be construed broadly, as was clear from Burton v British Railways Board (Case 19/81) [1982] ICR 328, 348, para 9 where the court said that in the context of the directive the word "dismissal" must be widely construed so as to include termination of the employment relationship between a worker and his employer, even as part of a voluntary redundancy scheme. But the court did not go down that road. The principle underlying its approach was the right of a person who claimed to have been discriminated against by her employer to obtain an effective remedy. 113. The conclusion which I would draw from this case is that the interpretation placed on the Directive by the European Court does not require your Lordships to read the words "employed by him" in section 6(2) of the Sex Discrimination Act as including each and every case where the employment relationship has come to an end. If that reading of those words were to be adopted it would enable all ex-employees to claim that they were entitled to the benefit of that subsection. It would extend the principle of equal treatment to them as a class, without regard to the question which was of concern to the court which was that the rights conferred by the Directive could be relied upon effectively in the courts. It would also raise problems which the court did not address about the scope of the employer's liability. If the protection were to be extended to ex-employees as a class without some words of qualification, employers would be exposed to a potential liability for unconscious and perhaps trivial acts of discrimination for the rest of the employee's life. There is no indication in court's decision that it saw this as one of the purposes of the Directive. The Advocate General's description of a reference as a "parting gift" which could not be severed from the employment relationship suggests that he regarded the expression "working conditions" in article 5 as referring to things that fell within the employment relationship. 114. It is to be noted however that the expression which the European Court used in Coote at p 112, para 19 to describe the period which falls within the scope of the Directive was "the employment relationship". Buxton LJ used the same phrase in Rhys-Harper v Relaxion Group plc [2001] ICR 1176, 1185, para 25 when he said that he agreed with Peter Gibson LJ's conclusion in Post Office v Adkeye [1997] ICR 110 that strong indications of post-contract activity would be needed within the events listed in section 6(2)(a) in order to compel a reading of "a person employed by him" in what he described as "the unnatural sense" of a person previously employed. But, as my noble and learned friend Lord Scott of Foscote has pointed out, the relationship between the employer and the employee does not necessarily come to an end at the precise moment when their contract terminates. There may well be things that need to be done to bring their relationship to an end after the contract has terminated. There may also have been agreements entered into during the employment about benefits to be enjoyed afterwards, such as the continued use of sports facilities, which remain to be implemented or there may be evidence that it is the employer's practice to allow the continued use of such facilities. At that stage the employer will, of course, be dealing with someone who strictly speaking is a former employee. But the fact that this description applies will not of itself remove that person from the scope of the Directive, so long as the transactions that remain to be completed are attributable to a continuation of their relationship as employer and employee. |
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115. I think that the approach which is indicated by the decision in Coote strikes a reasonable balance between the interests of the employee after the employment is ended and the risk to the employer of being exposed to claims indefinitely. I would extend the same meaning to the words "employed by him" in section 6(2) of the Sex Discrimination Act 1975 and, as I see no grounds for giving a different meaning to the same words where they appear in section (2) of the Race Relations Act 1976, to those words in that context also. That being so, as there are no rational grounds for a different approach to be taken to the use of similar language in the context of discrimination against disability, I would extend the same meaning to the words "whom he employs" in section 4(2) of the Disability Discrimination Act 1995. Whether or not there is still an employment relationship will be for determination according to the facts of each case.
116. I would therefore, with respect, differ from the decision of the Court of Appeal in Adekeye's case that the words "a person employed by him" in section 4(2) of the Race Relations ct 1975 did not apply to a person who was no longer an employee. That approach, which confines the scope of the protection strictly to the duration of the contract, seems to be out of keeping with the approach of the European Court in Coote when it used the expression "the employment relationship". I too would hold that that case was wrongly decided.
Conclusions
(1) Rhys-Harper v Relaxion Group plc
117. The issue in this case, as focused in the agreed statement of facts and issues, is whether, on a proper construction of section 6(2) of the Sex Discrimination Act 1975, an employment tribunal has jurisdiction to entertain a claim of sex discrimination where the act or conduct complained of occurred after the employment relationship has ended. In his opening remarks Mr Reynold QC for the appellant said this was what her case was about. He said that her complaint was that she had been sexually discriminated against after her employment had come to an end because the respondent's general manager, Mr Adamson, failed to investigate properly a complaint which she made at the hearing of her appeal against her dismissal on 9 November 1998 that she had been harassed on the ground of her sex by Mr Osborn. Mr Reynold did not suggest that Mr Adamson's investigation into this complaint had any bearing on his decision that there were sufficient grounds for the appellant's dismissal and that Mr Osborn's decision to dismiss her should stand. 118. I would hold that section 6(2) of that Act does not apply to the appellant's complaint of discrimination as so presented. What is alleged is a single and self-contained act of discrimination, which is said to have occurred when the appellant was no longer employed by the respondent. As for the wider question whether it was attributable to a continuation of their employment relationship, I would hold that there is nothing in this way of presenting her case which links the alleged act of discrimination by Mr Adamson to the conditions of her employment. The appellant did not ask Mr Adamson to investigate her complaint, and there has been no suggestion that she had any right to do so. She was no longer employed in the respondent's premises, so she was not in a position to benefit in any way from any decisions that Mr Adamson might have taken as a result of that investigation. Nor is there anything in it that links Mr Adamson's alleged failure to investigate this complaint properly to the appeal and his decision to confirm her dismissal. 119. But Mr Reynold sought to present her case in a different way when he was replying to Mr Reade QC for the respondent. He based this presentation of it on the fact that the appellant received two letters from Mr Adamson on the same day. One of these letters dealt with the outcome of the appellant's appeal against her dismissal by Mr Osborn. In the other Mr Adamson said that the allegation which the appellant made at the hearing of her appeal of sexual harassment by Mr Osborn had been investigated and that there was insufficient evidence to establish a case against him. Mr Reynold said that fact that these two letters arrived together showed that Mr Adamson's decision in the appeal was linked to his investigation into the appellant's allegation. The allegation had arisen in the course of her appeal against her dismissal. What the appellant was alleging therefore was bias on the part of Mr Adamson as the decision-taker in her appeal against her dismissal. Mr Reynold said that it was not realistic to divorce the appeal procedure from the ambit of the allegation of sexual harassment. The reality was that they were part and parcel of the same thing. 120. This presentation of the appellant's case makes it necessary to examine the history of her allegations against Mr Osborn more closely. According to a transcript of the notes of evidence of the chairman of the employment tribunal, the appellant said in her evidence that she did not bring the issue of sexual discrimination up when she attended the disciplinary hearing on 12 October 1998 which was conducted by Mr Osborn. She said that this because he was the perpetrator and because his girl friend was there. But the fact is that, for whatever reason, she did not mention this issue at the hearing. Moreover, she made no mention of sexual discrimination in her letter of 19 October 1998 in which she appealed against Mr Osborn's decision to dismiss her on the ground of misconduct. It was not until she saw Mr Adamson at the appeal hearing on 9 November 1998 that she mentioned the issue for the first time. She mentioned it again when she was setting out the details of her complaint in her application to the employment tribunal. She said that she was putting forward a complaint of sexual harassment and constructive dismissal against Mr Osborn, and gave details of various pro |