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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    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 4(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.


(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 problems of this nature which she had encountered with him during her employment. At the end of this document that she said that she felt that she had been sacked for misconduct once she had reported the sexual harassment. But the history which I have outlined shows that she did not make any such report until she mentioned the matter to Mr Adamson in the course of the hearing of her appeal against her dismissal.

    121. Although Mr Reynold did not put her case quite in these terms, it appears to me in the light of this further background that the case which he was seeking to put forward in his reply was that the appellant had been victimised within the meaning of section 4 of the Sex Discrimination Act 1975 by Mr Adamson in his conduct of the hearing of the appeal against her dismissal. Mr Reynold said that the appellant's case was that Mr Adamson's decision in the appeal was biased against her because of the complaint which she had made. An employment tribunal does not have jurisdiction under section 63 of the Sex Discrimination Act 1975 to investigate an allegation of bias on the part of the decision-taker in an appeal by an employee against her dismissal. But it does have jurisdiction under that section to deal with a complaint that she has been the victim of an act of discrimination by way of victimisation within the meaning of section 4 of the 1975 Act which is unlawful under Part II of the Act.

    122. In my opinion there is no doubt that an employment tribunal has jurisdiction to entertain a complaint of discrimination by way of victimisation which relates to conduct by an employer in his determination of an appeal by a woman against her dismissal from his employment. Article 7 of Directive 76/207/EEC requires member states to take the necessary measures to protect employees against dismissal by the employer as a reaction to a complaint within the undertaking aimed at enforcing compliance with the principle of equal treatment. Section 6(2)(b) of the 1975 makes it unlawful for an employer to discriminate against a woman by dismissing her. Discrimination within the meaning of section 6(2) includes discrimination by way of victimisation as defined by section 4. Section 6(2)(b), when read together with section 4, provides the protection which article 7 requires. An act of dismissal by way of victimisation is made unlawful by section 6(2)(b). So there is no need here for the appellant to rely on the obligation to ensure effective judicial control for the protection of the rights provided by the Directive arising from article 6 which the European Court of Justice described in Coote v Granada Hospitality Ltd [1999] ICR 100. The issues of statutory interpretation on this presentation of her case appear to me to be to be quite straightforward. The appellant's difficulty lies in the fact that her complaint that she was victimised by Mr Adamson in the course of the proceedings regarding her dismissal was not presented in this way at any stage in these proceedings until it was mentioned by Mr Reynold in his closing address to your Lordships.

    123. With some hesitation I have come to the conclusion that the events which happened in her case, as now presented, were all attributable to the employment relationship. There are various ways in which the facts can be analysed. But however this is done it would, as Mr Reynold said, be unrealistic to ignore the fact that the victimisation of which she complains was part and parcel of the events that were attributable to her employer's act in dismissing her. The stage at which it could be said that the employment relationship had ended had not yet been reached. I would allow this appeal.

(2) Donald D'Souza v London Borough of Lambeth

    124. Mr D'Souza's complaint is of racial discrimination and victimisation contrary to section 4(2), or alternatively section 4(1), of the Race Relations Act 1976. The act of which he complains is the failure by his former employer to re-instate him when ordered to do so by the Employment Tribunal.

    125. I would hold that section 4(2) does not apply to his case, as it is plain that the act of which he complains occurred after the employment relationship had come to an end. I would hold that section 4(1) does not apply to his case either. His argument was that the decision by his former employer not to reinstate him when ordered to do so by the Employment Tribunal under what is now section 113(a) of the Employment Rights Act 1996 was a refusal or a deliberate omission to offer him that employment within the meaning of section 4(1)(c) of the 1976 Act. I would reject that argument. His former employer was not being required to offer him that employment. What it was ordered to do by the tribunal was simply to reinstate him on the terms which the order itself specified. Failure to comply with an order for reinstatement by the tribunal will result in an award of compensation under the statute. There is no other remedy. What the Act does is to lay down a statutory procedure by which the employee obtains the benefit of the original contract. I would dismiss this appeal.

(3) Nicholas Kirker v British Sugar plc and Others

    126. These are all cases where it is said that allegations were made under section 4(2) of the Disability Discrimination Act 1995 of discrimination and victimisation after the employment relationship had come to an end. I would hold that the phrase "whom he employs", which qualifies the whole of that subsection, does not make it unlawful for an employer to discriminate against a disabled person who is no longer in his employment and with whom he no longer has an employment relationship. As to the facts, the question in each case is whether the interval in time was too long for it to be reasonable, in the light of all the surrounding circumstances, to conclude that there was still an employment relationship.

    127. A period of about one year and ten months had gone by before Mr Jones asked for the return of his business cards. The other cases all relate to requests for references. I consider that these cases all lie close to the limits of what comes within the boundaries of the employment relationship. A request which is made after a short interval may well be regarded as having been made while there was still an employment relationship. But it well be thought to be unreasonable to expose employers to the risk of proceedings before an employment tribunal after a long interval. It is one thing to hold the door open, as it were, for this purpose for a few weeks or possibly for a few months. It is quite another for an employer to be compelled to provide references for an ex-employee, perhaps several times over, in response to repeated requests long after the employment has ended.

    128. The solution to this problem may well lie, as my noble and learned friend, Lord Nicholls has pointed out, with employers in the first instance. If it is the employer's practice to give references to former employees after such a long interval, then the employer must be careful not to discriminate. If the employer's practice is to cease giving references after a given interval, then the refusal of a reference to a particular individual after that interval has passed will not, without more, be discriminatory. The "chilling effect" of these propositions is regrettable but inescapable. It is by no means unknown for employers to seek safety by adopting practices in the giving of references which are as parsimonious as possible. For smaller employers, of course, the number of former employees asking for references may be too few to enable them to develop a practice which will protect them against vexatious claims. In their case employment tribunals will need to be particularly vigilant.

    129. With some hesitation I have come to the view that, although these cases lie close to the borderline, it has not been shown on the facts which are available so far that the employment tribunals do not have jurisdiction to consider them. For this reason I would allow these appeals and remit the cases to the tribunals for further consideration.


    130. These appeals concern the proper understanding of the provisions of three anti-discrimination Acts and their application to the six cases concerned. The courts below were bound by the Court of Appeal decision in Post Office v Adekeye [1997] ICR 110. It is necessary to decide whether that case was rightly decided. The appeals all came before the House as cases relating to the jurisdiction of Employment Tribunals.

    131. But, if one is to reject the bright line rule stated in Adekeye and adopt a less absolute criterion, it becomes necessary, in considering the disposal of the individual appeals, to consider whether by that criterion the Tribunal should have accepted jurisdiction. This involves ascertaining what claim or claims it was that the aggrieved party made in the Tribunal proceedings and to what extent they were rendered inadmissible by failure to present the claim to the Tribunal within the period of three months beginning when the act complained of was done: see, for example, s.76(1)(a) of the 1975 Act. A feature of discrimination cases in the employment field is that the obvious way of formulating a claim may be ruled out because the complainant has (without sufficient excuse) allowed the three months time limit to expire without bringing proceedings. The complainant then has, artificially, to find some act within the three month period on which to build the claim. (This point is particularly relevant to the disposal of the Rhys-Harper appeal.)

    132. The scheme which I will follow in this Opinion is, first, to make some general observations about anti-discrimination legislation, then to discuss Adekeye point, then, the victimisation point and then, finally, to apply my conclusions to the individual cases.

Anti-Discrimination Legislation:

    133. The Sex Discrimination Act 1975 broke new ground for English domestic law and adopted a fairly cautious approach. The criteria for discrimination and the scope of the Act's application were fairly narrowly drawn. It is not right to view it, which was the invitation of the appellants, as creating a comprehensive anti-discrimination scheme. The Race Relations Act of the following year was in the same mould but at the same time adopted a more generalised criterion of unlawful discrimination. The former Act had said: "a person discriminates against a woman if on the grounds of her sex he treats her less favourably than he treats or would treat a man". The latter Act uses the phrases "on racial grounds" and "other persons" which do not depend upon the racial group to which the actual complainant personally belongs or the racial group to which the comparator belongs provided the relevant racial ground would not apply to him but is otherwise comparable. For example, the relevance of race may be to the fact that the complainant is married to a person of a different race or has adopted children of a particular race. The drafting of the 1995 Act also shows signs of a developing confidence of those responsible for anti-discrimination legislation and refers to the "reason" for treating someone less favourably. The same developments are to be observed in other provisions of the three Acts. In construing each of these Acts and assessing and understanding decisions made under one or other of them, it is necessary, if errors are not to be made, to have regard to the actual wording of the relevant Act as is illustrated by what I have said about the different criteria used in the 1975 and the 1976 Acts.

    134. Another self-evident point is that the drafting of each Act had to be adapted to the type of discrimination at which it is directed. Thus the Disability Discrimination Act 1995 inevitably has to relate to direct discrimination and include a defence of justification. It is coupled with qualified obligations to make special arrangements for those with disabilities, including, in limited circumstances, adapting buildings. Similarly, each Act makes specific but different provision for its scope of application and those it will affect. But each Act also has a similar structure and, as between the 1975 and 1976 Acts, some provisions are expressed in the same or very similar words. This is particularly so in relation to the 'employment field' provisions. I agree that these statutes should be read as contributions to a developing scheme of anti-discrimination law and such words should not without good reason be given a different reading as between one of the statutes and another. They are not statutes to be formally 'read with' each other but they are statutes which reflect a consistent (though developing) legislative policy. The wording of the 'employment field' provision in the 1975 and 1976 Acts is in a relevant respect slightly different from the 1995 Act which, instead of using the phrase "employed by him", uses the phrase "whom he employs". None of the counsel in these appeals submitted that a distinction should be made between the Acts on this ground. I consider that they were right. I will accordingly use the 1975 Act as the reference point save where it is necessary to refer to the Acts separately.

    135. The structure of the relevant parts of each of the Acts is also similar. They start with a definition of the relevant test of discriminatory conduct: Part I in the 1975 Act. They continue by defining (with elaborations or qualifications) the 'fields' in which the Act is to apply: Parts II and III of the 1975 Act. They then add provisions making some related acts unlawful and granting some general exceptions to the application of the 'fields': Parts IV and V of the 1975 Act. The words directly involved in the Adekeye point are in the Part defining the 'employment field'. All these cases were said to arise in the employment field, which in all three Acts is the primary field of application. The victimisation point arises from provisions which in the 1975 and 1976 Acts appear in the Part defining discriminatory conduct but which, in the 1995 Act, are placed in the later Part which (inter alia) makes other related acts unlawful (Part VII). In all three Acts the actual wording of the victimisation provision is similar and is by way of extending the definition of 'discrimination'. In relation to sex discrimination, what is involved in victimisation has been the subject of a decision of the European Court of Justice in the case of Coote (case C-185/97) applied by Morison J in Coote No.2 [1999] ICR 942, to which I will revert later.

Adekeye: 136.

    Adekeye was an employment field case under the 1976 Act. It was therefore essential for the complainant to show that the Employment Tribunal had jurisdiction under Part II of the 1976 Act. Her complaint was that she had been summarily dismissed by her employers, the Post Office, on racial grounds and that, on the same grounds, she had again been discriminated against when she had appealed against her dismissal under the Post Office's internal appeal procedure and her appeal had been dismissed. Her complaint against her dismissal was out of time but her complaint relating to her appeal was not. The Court of Appeal referring to the wording of s.4(2) of the 1976 Act formulated the question to be answered as being: Could a person who had been dismissed still be described as "a person employed by" the person who had already dismissed him? They adopted a simple temporal test: did the relevant act come before or after the termination of the employment? The Court of Appeal, following an earlier decision by the Employment Appeal Tribunal in Nagarajan v Agnew [1995] ICR 520, concluded that being employed and being dismissed were mutually inconsistent states. The Court of Appeal accordingly held that the Employment Tribunal had no jurisdiction. It was this decision by which the courts below were bound and which caused them to decline to entertain the appellants' various applications.

    137. Was Adekeye right? As a matter of the simple language of s.4(2) and its equivalent in the 1975 and 1995 Acts, there is much to be said for it and it provides a rule of simple application. But a different view is possible. The words are not used to refer to a status but to a connection. Under the Acts the discriminatory treatment does not have to be an infringement of the complainant's contractual rights. It can simply be less favourable treatment than that afforded to others in a like position. To introduce at this point into the structure of the Acts a criterion of strict contractual status would be anomalous having regard to their scheme as a whole. There is the further recommendation for the connection approach that it avoids some of the individual anomalies as illustrated by the facts of Adekeye itself and referred to in the judgment in that case. Why distinguish between the discriminatory dismissal and the discriminatory conduct during the internal appeal against that dismissal? Indeed, the complainant may have a contractual right to invoke the appeal procedure and to a fair consideration of his or her appeal. The remedy for which the complainant may be asking in that appeal procedure is the revocation of the dismissal decision. To construe the Act so that the dismissal can be the subject of a discrimination complaint but the handling of the appeal cannot is irrational and unnecessary. The scheme of the Acts and the context in which the relevant words occur suggest that, rather than importing a crude temporal test, they describe the substantive scope within which the various duties not to discriminate under the Acts apply in the employment field.

    138. But that still leaves a problem. The purpose of the relevant Part of these Acts is to define the scope of their operation (and consequentially, in relation to the 'employment field', the jurisdiction of Employment, formerly Industrial, Tribunals). One therefore needs, before one can properly discard the Adekeye interpretation, to see whether the alternative interpretation has a sufficient degree of clarity to be a fair reading of the words used and to perform the defining function of these words in the Acts. In the 1975 Act, the relevant words "woman employed by him" only appear in s.6 of the Act. Subsection 6(1) does not use such words since it deals with those seeking employment; it uses the words "in relation to employment by him". In subsection 6(2) where the words are used, no problem need arise under paragraph (a) since the wording of that paragraph read as a whole clearly refers to things happening during the currency of the woman's employment by the discriminator; (a) is self limiting and therefore does not raise the question presently under consideration nor does it need a restricted meaning to be given to the introductory phrase. It is in paragraph (b) that the question manifests itself. (b) includes two elements: first, "by dismissing her"; secondly, by "subjecting her to any other detriment". The first should be read as referring to the whole of the process of dismissal. So, if the internal procedures of the employer or the legitimate expectations of the employee (or indeed the avoidance of an 'unfair' dismissal) include a review of the dismissal decision, whether by appeal or otherwise, (b) should be read as including that review within its scope and any discrimination on grounds of the sex of the employee will be contrary to the law. (I have used the word 'employee' in this sentence deliberately to demonstrate that it is a perfectly natural use of language to refer to the woman in this situation in that way.) Thus the content of the first part of (b) suffices to guide the giving of a non-legalistic meaning to the earlier phrase "employed by him". In my judgment a similar approach should be adopted in relation to the second part of (b) - "or subjecting her to any other detriment", a phrase which can include the denial of a benefit and ties in with the phrase "treats her less favourably" in s.1.

    139. The words "subjecting her to any other detriment" are general and undefined but it can be seen that the problem of construction is to decide what breadth they should be given and whether, on the facts of any given case, the facts fall within them. Guidance upon the scope can again be derived from the content of the provision. What are the detriments which an employer may subject an employee to which can fairly be referred to as "any other detriment" in the context of this subsection? The answer must lie in a test of proximity. Does the conduct complained about have a sufficiently close connection with her employment? Is it sufficiently similar to the other conduct mentioned in the subsection? Any criterion of proximity has as its antithesis the concept of remoteness. Remoteness can have, as an element, remoteness in time. The further removed the conduct is in time from the employment, the greater the likelihood that the conduct is too remote and that the employment has become merely a matter of history. This is not a resurrection of the Adekeye test; it involves no cut-off point but is simply a recognition that, as time passes, it may become more difficult to show that the conduct complained of had a sufficient connection with the employment and a sufficient similarity with the other conduct falling within subsection (2). Thus it is relevant to ask whether the conduct complained of, if committed whilst she had still been currently employed by the person complained about, would have come within s.6(2)(a); but she will also have to show that other former employees would, in the same circumstances, not have been subjected to the detriment - would have enjoyed the benefit denied to her.

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