Judgments - 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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    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:

    "The concept of a person affording 'access' to benefits to a woman 'employed' by him only makes sense when directed to conduct taking place during the employment relationship. If what was addressed here was conduct towards former employees, not only would that be spelled out in terms, but also language a good deal different from that of providing access to facilities would be used."

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 my judgment, the meaning of the language of section 4(2) is so plain that, as a matter of construction, the court would not be justified in departing from its natural meaning in order to avoid the predicted consequences. I would add that some surprising consequences might be thought to flow from the construction of section 4(2) proposed by the applicants. For example, a disabled employee, who was fairly dismissed for misconduct after a month of employment, would be entitled for the rest of his life to make claims of discrimination and victimisation against his former employer who would be potentially liable, even for subconscious acts of discrimination and victimisation (see Nagarajan v London Regional Transport [2000] 1AC 501) in respect of post-termination acts committed many years later, such as the provision or non-provision of a reference."

    93. In contrast to the position which has been adopted by the Court of Appeal, Morison J has made his disgreement with the decision in Adekeye clear on at least two occasions. In Coote v Granada Ltd (No 2) [1999] ICR 942, a case under the Sex Discrimination Act 1975 which was decided following a reference to the European Court of Justice, he said at p 949 that it seemed to the tribunal that the present tense would have been quite apt had the section been intended to apply to former employees since what is made unlawful is a present act of discrimination. He summed the position up at p 950:

    "We have not been persuaded that it could be said that the Court of Appeal's decision was so mistaken (per incuriam) that it need not be followed. We quite see the force of the criticisms made of it. Indeed, we would go further and respectfully say that we disagree with it. But the doctrine of precedent requires us to follow it and, had it been applicable to this case, we would have done so".

In D'Souza v London Borough of Lambeth (EAT, unreported, 27 June 2000) he said in para 6:

    "It seems to us that we are bound by the decision of Adekeye which must be faithfully followed, although we do so without relish. We can see a strong argument for adopting a purposive approach to section 4 and make it elastic enough to cover acts of discrimination against former employers. The employment relationship, in the most general sense, outlives the contractual relationship: there are references, pension matters, sports clubs and other post employment events which links an ex employee with his former employer. It would be intolerable if an employer could blacken the former employee in the market place because he had successfully sued his former employer in a tribunal. If people are frightened by what happens to them if they make a complaint, the evil of discrimination will be more likely to live on. Not all perks and privileges for retired staff could be considered contractual and it is difficult to understand why, if they are dealt with in a discriminatory way, they should not be covered by the Act, since there may be no other available remedy."

    94. Against this background which indicates that there are powerful views on either side of the argument, I now turn to the language of the statutes themselves. I shall take them in their historical order, although it will not be necessary to say much about the Race Relations Act 1976 as the wording which it uses is so close to that of the Sex Discrimination Act 1975.

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” in the Disability 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:

    "If the legislation can reasonably be construed so as to conform with those obligations - obligations which are to be ascertained not only from the wording of the relevant directive but from the interpretation placed on it by the European Court of Justice at Luxembourg - such a purposive construction will be applied even though, perhaps, it may involve some departure from the strict and literal application of the words which the legislature has elected to use."

In Webb v Emo Air Cargo (UK) Ltd [1983] ICR 175, 186 Lord Keith of Kinkel said:

    "… it is for a United Kingdom court to construe domestic legislation in any field covered by a Community Directive so as to accord with the interpretation of the Directive as laid down by the European Court of Justice, if that can be done without distorting the meaning of the domestic legislation …"

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:

    "As the European Court of Justice said, a national court must construe a domestic law to accord with the terms of a directive in the same field only if it is possible to do so. That means that the domestic law must be open to an interpretation consistent with the directive whether or not it is also open to an interpretation inconsistent with it."

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:

    "As follows from Marleasing SA v La Comercial Internacional de Alimentacion SA (Case C-106/89) [1990] ECR I-4135, 4159, para 8 and Wagner Miret v Fondo de garantia salarial (Case C-334/92) [1993] ECR I-6911, 6932, paras 20 and 21, in applying national law, in particular legislative provisions which, as in the present case, were specially introduced in order to implement the Directive, the national court is required to interpret its national law, so far as possible, in the light of the wording and the purpose of the Directive in order to achieve the result pursued by the third paragraph of article 189 of the EC Treaty."

    106. The phrase "employed by him" in section 6(2) of the Sex Discrimination Act 1975 is, as I have said, ambiguous. I think that it is possible to construe it as referring to a woman who is no longer employed by the alleged discriminator as well as to a person who is employed by him, although I do not think that that is what the phrase means when domestic rules of construction are applied to it and it is taken in its context. So the question which arises in Mrs Rhys-Harpers' case is whether Directive 76/207/EEC, as interpreted by the European Court, requires us to adopt that possible construction.

    107. There is nothing in the wording of the Directive which makes it plain to the domestic reader that its purpose was to extend the principle of equal treatment for men and women as regards access to employment to cases where the employment relationship has come to an end. It refers in its long title to "the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions." The preamble too refers to access to employment, training and promotion and to "working conditions, including pay", as does article 1 which describes the purpose of the Directive. One finds here the familiar categories of people seeking employment, training or promotion on the one hand and those who are in work on the other. Nothing is said about ex-employees.

    108. The articles which are most directly in point with regard to the question what scope is to be given to the expression "working conditions" are these:

    "Article 5

    1. Application of the principle of equal treatment with regard to working conditions, including the conditions governing dismissal, means that men and women shall be guaranteed the same conditions without discrimination on grounds of sex.

    Article 6

    Member States shall introduce into their national legal systems such measures as are necessary to enable all persons who consider themselves wronged by failure to apply to them the principle of equal treatment within the meaning of articles 3, 4 and 5 to pursue their claims by judicial process after possible recourse to other competent authorities.

    Article 7

    Member States shall take the necessary measures to protect employees against dismissal by the employer as a reaction to a complaint within the undertaking or to any legal proceedings aimed at enforcing compliance with the principle of equal treatment.

    Article 8

    Member States shall take care that the provisions adopted pursuant to this Directive, together with the relevant provisions already in force, are brought to the attention of employees by all appropriate means, for example at their place of employment."

    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:

    "In those circumstances, the questions put by the national court must be understood as seeking to ascertain, for the purpose of interpreting national provisions transposing Directive (76/207/EEC), whether the Directive requires member states to introduce into their national legal systems such measures as are necessary to ensure judicial protection for workers whose employer, after the end of the employment relationship, refuses to provide references as a reaction to proceedings brought to enforce compliance with the principle of equal treatment within the meaning of the Directive."

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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