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

(back to preceding text)

    140. I appreciate that such an approach will ultimately lead to fact specific decisions in a number of cases but that is what is involved in the rejection of an arbitrary time-based criterion. It should not lead to any additional uncertainty for employers since the construction which I prefer is based upon a factual connection with the employment which it should be easier for the lay employer to understand and apply than an essentially legal criterion depending upon identifying the moment when 'dismissal' was complete. The nub is that the introductory words "a woman employed by him" are to be read with the rest of subsection (2) and relate to a substantive and proximate connection between the conduct complained of and her employment by the alleged discriminator.

    141. In assessing whether the requisite connection exists, a starting point is to ask whether the same conduct during the currency of the employment would be unlawful. Likewise it is relevant whether or not a legitimate expectation of the benefit, or the contractual right to it, has continued and whether other former employees do in the same circumstances enjoy the benefit or suffer the detriment. For example, if other employees are permitted to continue to enjoy the use of the employee's social club after they have retired, but the complainant is not, that will come within the expression "any other detriment" and, if she has been discriminated against on grounds of her sex, she will be entitled to complain.

    142. More difficult is the giving of references since it may refer to many different situations - the refusal of any reference at all, the giving of a limited reference, the giving of an unfavourable reference - and to many different complaints - breach of contract, breach of a legitimate expectation, breach of a duty of care, defamation, discrimination. Also the complainant may well be able to argue that, if the same reference had been refused or given during the currency of her employment, she would have been discriminated against but it of course does not necessarily follow that later conduct would also amount to discrimination. Something more has to be alleged and proved, that she had at the least a legitimate expectation of being given a reference at a later stage and in her then circumstances and that other ex-employees would in the same circumstances have been given one. Likewise, if one has been given but she is complaining about what it does or does not say, she must allege and prove that others in the like circumstances would have received a favourable one. In Spring v Guardian Assurance Plc [1995] 2 AC 296, your Lordships' House considered the extent and content of the obligation to give a reference. Lord Woolf referred at p. 354 to the fact that the position might not be the same once the employee had left his employment and there had been a lapse of time. Discussing the contractual term which might be implied he used the phrase "during the continuance of the engagement or within a reasonable time thereafter". The obligation will not necessarily be open-ended and the later it is asked for the less detail and information it may contain. It must be an obligation which the employer recognises in respect of other ex-employees in the like circumstances, otherwise the complainant cannot say she has been subjected to a detriment or denied a benefit. If the conduct is to be the subject of a complaint under one or other of the anti-discrimination Acts, it must come within and satisfy the criteria of the relevant Act. This illustrates the link in practice between the questions of 'less favourable treatment', denying a 'benefit' and subjecting to a 'detriment'. I will have to revert to the question of references when I come to deal with the appeals in the cases which arose under the 1995 Act.

    143. What I have said in the preceding paragraphs also reflects the view of the European Court of Justice in their decision in the case of Coote (C-185/97). The employee's complaint was that she had been discriminated against on the grounds of her sex in that after leaving her employment she had applied to her former employer for a reference and had been refused one. The back-ground to the dispute was that she had earlier, whilst still actually employed by him, complained about other conduct of her employer and her discrimination claim on that occasion had been settled. The case therefore had a victimisation element. The Industrial Tribunal had rejected her (second) claim under the 1975 Act on the ground that at the time she was refused a reference she was no longer employed by him. However, since her case was also covered by the 'Equal Treatment Directive' (76/207/EEC), the EAT sought an opinion from the ECJ whether that decision was consistent with the Directive's requirement that member states provide effective remedies.

    144. The Advocate-General, at paragraphs 14 to 16 emphatically rejected the Adekeye criterion: "It would be totally unjustifiable for the application of the prohibition of discrimination on the grounds of sex to a decision on the provision or refusal of references to depend on the moment when that decision was taken ...... The court has, moreover, always held with regard to equal pay that the prohibition of discrimination by an employer between employees on grounds of sex does not cease to have effect on the termination of the contract of employment. ....... I therefore consider that an employer may not discriminate on grounds of sex when providing an employee with references, whatever the moment - whether during or after the period of the employment relationship - at which the decision is taken in that regard or at which those references are requested."

    145. The ECJ in its judgment, after noting the element of victimisation, summarised its ruling upon the question referred in paragraph 28:

    "In those circumstances the answer to the questions put by the national court must be that article 6 of 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 employment relationship has ended, refuses to provide references ..........."

It would be possible to read this judgment as limiting the ruling to cases of victimisation but in my view that would not do justice to the reasoning which is more comprehensive. Nor would it pay adequate regard to the clear views expressed by the Advocate-General.

    146. On the return of the case to the EAT, [1999] ICR 942, the Appeal Tribunal recognised that the main issue which they had to consider was "whether it is possible to construe the Act of 1975 so as to enable a complainant to make a victimisation complaint in relation to events that occurred after the employment relationship had terminated". The judgment of Appeal Tribunal given by Morison J, carefully reviewed the reasoning of the Court of Appeal in Adekeye and concluded that it could no longer be followed. Victimisation cases may be a fortiori but within the scheme of these Acts all cases have to pass through the gateway of one of the 'fields' of application and therefore it is still, in an 'employment field' case, necessary to consider the "employed by" question. I consider that Morison J was right and that Adekeye is no longer good law.

Victimisation:

    147. What I have said in the preceding paragraphs is also largely dispositive of the treatment of victimisation cases. Victimisation is in principle a free-standing unlawful wrong. It is ancillary to the main provisions of the relevant Act. It is not dependant upon the primary criterion of discrimination - sex, race, disability. The criteria are different. For example, to use the wording of s.4 of the 1975 Act, the victimisation arises from the complainant having made a sex discrimination complaint against the discriminator or any other person or having assisted another to do so or having given evidence in support of that other. The section has even been amended to bring in other Acts and extends to suspected conduct of the victim either past or future. These criteria go far beyond anything specific to any employment relationship between the victim and the alleged discriminator and are in themselves gender (or race or disability) neutral. There is a saving in each of the Acts to exclude 'victims' who have made false allegations or acted in bad faith.

    148. However it is still necessary for the person making a victimisation complainant to show that the discriminator has treated the person victimised "less favourably than in those circumstances he treats or would treat other persons". This brings one back to the 'field' provisions and, in the 1975 Act, to s.6(2). The less favourable treatment has to come within one part or another of s.2 and, if it is upon s.6(2) that the complainant relies, the complainant must show the requisite connection between the less favourable treatment complained of and her employment, whether it be prospective, future, current or past, by the alleged discriminator. Again the decision of the ECJ is compelling. The Acts must be construed so as not to amount to the denial of a remedy for victimisation and, in particular, not so as to apply an arbitrary temporal test. Once it can be shown that it is a detriment - a disadvantage - to which the employer does not subject others and it can fairly, in the context of s.6(2), be termed any other detriment, the victimised complainant will have proved what is required in this respect. It is certainly not disproved by the mere fact that the complainant is no longer employed by the discriminator.

    149. Victimisation is an a fortiori case which shows that the application of the Adekeye approach is unacceptable. But essentially the same construction of the provisions defining the 'employment field' is to be adopted in victimisation cases and in ordinary discrimination cases. The case must still come substantively within the provisions defining the 'field'.

The Jurisdiction Question:

    150. In any 'employment field' case there is potentially a jurisdiction question for the Employment Tribunal. Section 63(1) of the 1975 Act (as amended) provides:

    "  A complaint by any person ('the complainant') that   another person ('the respondent') (a) has committed an   act of discrimination against the complainant which is  unlawful by virtue of Part II ......... may be presented   to an employment tribunal."

There are provisions to the like effect in s.54(1) of the 1976 Act and s.8(1) of the 1995 Act. The Tribunals are bodies with limited jurisdiction. Section 2 of the Employment Tribunals Act 1996 empowers them to exercise the jurisdiction given to them by (inter alia) these Acts. It follows that if the complaint does not fall within the 'employment field' as defined in the relevant Act, the Employment Tribunal does not have jurisdiction to entertain the complaint and must decline to do so, as did the Tribunal in Adekeye.

    151. To categorise any question as going to jurisdiction raises procedural problems for the Tribunal. At what stage of the proceedings should the Tribunal decide the question? Does the actual question go to jurisdiction? Under Adekeye this did not raise any real difficulty for the Tribunal. The complainant had to say when the act complained of had occurred. The time based criteria (the time bar and the date of dismissal) could then be mechanically applied. But if, as is my opinion, a substantive criterion has to be applied, more may need to be known and some investigation may have to take place. There seems to be no escape from the conclusion that the whole of the 'employment field' provision (in the 1975 Act, s.2) is relevant to jurisdiction. The complainant must prove - satisfy the Tribunal - that his or her complaint comes within the relevant section. If the complainant fails to do so, then the claim must fail both substantively and as a matter of jurisdiction. This would then preclude any consideration whether or not there was any discrimination contrary to the primary provisions of the relevant Act or any victimisation.

    152. But this tidy dichotomy will rarely exist in practice. The question whether the complainant was subjected to some "other detriment" overlaps with (but is not the same as) the question whether the claimant was treated "less favourably". The Tribunal will often find itself in practice in the same position when deciding an issue concerning less favourable treatment as it now does when it has to decide a dispute which turns upon the provisions which define the 'employment field' and will find it advantageous to make use of the same procedures to simplify hearings and separate off those claims which can have no proper basis and those allegations which appear to have no substance in fact. As the cases demonstrate, the Tribunal is competent to decide whether it has jurisdiction and any such decision can be the subject of an appeal to the Appeal Tribunal.

The Individual Cases:

    153. In all the cases under appeal the courts below had treated themselves as bound by Adekeye. They accordingly decided them against the present appellants on jurisdictional grounds (and/or time bar) without considering or investigating the merits of the appellants' claims. I have given my opinion that Adekeye is not good law; it follows that all the appeals should be allowed and remitted for further hearing unless there is some other factor which justifies not taking that course.

Rhys-Harper

    154. The whole of her complaint involved allegations of less favourable treatment which fell within the ambit of the 'employment field' as being either part of the dismissal process itself or part of the internal review of her dismissal. Her primary problem was that she had not made any claim in the Employment Tribunal until 18th February 1999. The cut-off date for her was therefore 19th November 1998. She had been dismissed at a disciplinary hearing held on 10th October. She had exercised her right of internal appeal and the hearing was on 9th November. Originally her complaints were confined solely to her being dismissed on the ground of what had occurred on 6th October (the date of the incident involving guests at the swimming pool for which she was being disciplined). However when giving evidence at the hearing of her internal appeal, which was conducted by the Respondents' general manager, Mr Adamson, she stated that she been subjected to sexual harassment at an earlier stage of her employment and referred also to other earlier acts of sexual discrimination at earlier dates which she had not complained about at the time. Mr Adamson asked her to give him a written statement concerning the earlier incidents so that he could investigate them himself. (The written statement has not been put in evidence in the present proceedings.) She later told the Employment Tribunal that "it was investigated badly."

    155. On 30th November Mr Adamson sent Miss Rhys-Harper two separate letters. One, headed "Re Appeal Hearing" consisted of one sentence: "Following your appeal against your dismissal, having investigated the events the company has found there was sufficient grounds to dismiss and therefore the decision stands." The other headed "Re Allegation of sexual harassment against Ken Osborn". In it Mr Adamson referred to the allegation of sexual harassment she had made against Mr Osborn, informed her that a full and thorough investigation had been made into the alleged incident (which she had said had occurred at an earlier date when she had gone into the mens' showers and no one else had been present), that staff had been interviewed, including Mr Osborn, that it was confirmed that she had reported the incident but had asked for the information to remain private, that other staff had been unable to substantiate or witness the alleged harassment and that accordingly the company had concluded that there was "insufficient evidence to establish a case against Mr Osborn". He ended his letter by stressing that the company did not condone harassment or victimisation and any member of staff found guilty of any form of harassment would be dealt with in accordance with company policy and disciplinary procedures, adding that if additional evidence should become available a further investigation would be held.

    156. In her application to the Employment Tribunal, she confined her complaint to sexual harassment and (it seems) constructive dismissal. Her particulars of her complaint only referred to alleged incidents of sexual harassment and bullying occurring over a period January 1998 to October 1998 and to the incident which occurred on 6th October 1998 and had led to her dismissal. She alleged that the investigation of the 6th October incident and her complaints about Mr Osborn had not been investigated properly by the company prior to dismissing her. The Employment Tribunal considered that time could be treated as running from 30th November and that her claims were accordingly in time. Before the Tribunal she had appeared in person and the company had been unrepresented and had merely made a short written submission.

    157. Before the Appeal Tribunal both sides were represented, the company by an employee and Miss Rhys-Harper by counsel. Her counsel put her case solely on the basis of sexual discrimination submitting that "the act complained of" was "the act of failure to investigate properly and dismissing her complaint" (sic). But it was not part of her case that she had asked Mr Adamson for an investigation, nor has she alleged that in that investigation she was treated unfavourably on the grounds of her sex. The Appeal Tribunal were nevertheless prepared to treat this complaint as referring to a continuing breach still existing on 30th November but they rejected the claim on the basis of Adekeye. If the Appeal Tribunal was not correct in its conclusion about the time bar point, the claim would have failed anyway; the Adekeye point would be academic.

    158. Your Lordships consider that the case should be remitted to enable the further consideration of her claim unfettered by the decision in Adekeye. For myself, I have considerable doubts whether this is an appropriate order to make. There seems to have been a mistaken assumption that under the 1975 Act there was an entitlement to make a free-standing complaint of sexual harassment and to overlook the necessity for establishing a breach within the criteria stated in s.1(1)(a) of the Act and satisfying the substantive requirements of s.6(2)(b) which I have endeavoured to explain. The fact that Adekeye was wrong does not mean that s.6(2) is not still relevant to the admissibility of the claim now being put forward. Nor does it mean that the 3 month time limit can be forgotten about or that it is unnecessary to do justice as between both parties and to consider whether she had ever made the complaint now relied on prior to its being introduced during the hearing. Since the decision of the House is that the case should be remitted, I trust to a freshly constituted Tribunal which will reconsider the whole matter, I will say no more about these points as they will now have to be subject of a decision of an Employment Tribunal. If her present complaint was time barred at the time she first made it, it remains time barred now.

D'Souza:

    159. This case too has complexities. In 1992, the appellant had made claims of unfair dismissal, race discrimination and victimisation which were upheld by the Employment Tribunal which ordered that he be reinstated. In March the following year the Borough informed him that he would not be reinstated. On 1st July 1995, the appellant made a complaint of further discrimination and victimisation in respect of the failure of the Borough to reinstate him. On 10th July 1995, the Tribunal found that it had not been reasonably practical to reinstate him and made an appropriate award of compensation taking into account the failure to reinstate him. The Tribunal communicated its decisions to the parties on 10th and 14th August. Meanwhile, on 31st July, the appellant had lodged a further application to the Tribunal effectively duplicating that of 1st July alleging that the refusal to reinstate was race discrimination and victimisation. It was this application which came before the Tribunal on 23rd February 1996 and was dismissed on the basis of Adekeye.

    160. The problem for the appellant is that his essential complaint remains that he was not reinstated. It is this act which he alleges amounted to discrimination and victimisation. But he has already, pursuant to the earlier decision of the Employment Tribunal, been compensated by the Borough for the failure to reinstate and there is nothing further which can form the basis of a claim for compensation. I therefore agree with your Lordships that the appeal in this case ought to be dismissed.

The 1995 Act cases:

    161. These four cases also raise some problems. Two of them are concerned with the content of references: Kirker and Angel. A third, Bond, concerns an answer given to a mortgage insurance company. The fourth, Jones, is different and relates to the refusal to return property. They all lie close to the limits of what comes within the boundaries of the 'employment field'. Three of them raise arguable cases of victimisation - Kirker, Jones and Angel - and are thus capable of satisfying the discrimination requirement but still need to satisfy the 'employment field' requirement.

162.

    Jones is perhaps the simplest case. Mr Jones complains of the refusal to allow him to have back business cards, his personal property, which were left behind at his workplace when he was dismissed. The connection with his employment is clear and not affected by the delay which occurred. I would therefore allow the appeal and order a remission.

163.

    Kirker and Angel are, as I have said reference cases but of a particular kind. They relate to delayed applications for references which were not responded to as favourably as the appellant would have wished. Mr Kirker complains that his employers declined to answer the question whether they would have re-employed him. The person answering a reference is under a duty to the person making the inquiry to give an honest and truthful answer. If the truth is that the referee would not have re-employed the relevant person, the referee must say so even though it may be fatal to that person's job application to the person making the inquiry. The same considerations apply to the complaint of Mrs Angel. If the case of either of them is that the former employer should have given a reference which it did not believe to be factually correct and accurate, the complainant will have to be prepared to allege and prove that the former employer would have given other ex-employees references which it knew were inaccurate or incorrect. This is a difficult case for any complainant to make credibly and, if they cannot, they have no credible case that they have been treated less favourably. Since the answers to this question depends upon facts not in your Lordships' possession on the hearing of these appeals I would therefore allow the appeals and order remission as in the case of Rhys-Harper.

    164. Finally in the case of Mrs Bond. Her case has a longer history behind it. Her complaints centre on two points. One is that Hackney CAB declined to supply her with references in accordance with a draft which she herself had prepared. The other is that they declined to state to her mortgage insurance company that she had been made compulsorily redundant. It was the Bureau's understanding that she had agreed to voluntary redundancy. Following the same logic, I would allow her appeal and order a remission so that the whole matter can be considered afresh.

Conclusions:

    165. For these reasons, which substantially accord with those of my noble and learned friend Lord Nicholls, I would allow the appeals in all the cases except D'Souza and make orders accordingly for remission to an Employment Tribunal: I would dismiss the appeal in D'Souza.

LORD SCOTT OF FOSCOTE

My Lords,

    166. Each of these appeals raises the important question of principle whether discriminatory acts (or omissions) detrimental to an ex-employee but carried out by an ex-employer after the employment has come to an end can give rise to liability under the anti-discrimination legislation at present in force. Although the point of principle arises in each of the appeals, and needs to be considered as a point of principle, the point requires a context for its implications to be fully comprehended. The facts of each appeal have been fully set out in the opinions of my noble and learned friends, Lord Nicholls of Birkenhead and Lord Hope of Craighead. I gratefully adopt their exposition and can confine myself to referring to the essential skeletal details of the respective cases.

Rhys-Harper v Relaxion Group plc

    167. The appellant's complaint to the Employment Tribunal began its life as one of sexual harassment and constructive dismissal. She had been accused of misconduct. A disciplinary hearing to enquire into the incident in question was conducted by a Mr Osborn. His decision was that she was to be dismissed and she was given one week's notice, expiring on 22 October 1998. The decision was formally communicated to her by letter of 15 October 1998. Under Relaxion's internal disciplinary procedures she had the right to appeal against the dismissal decision. She decided to exercise this right and appealed. Her appeal was heard by Mr Adamson, Relaxion's general manager. In the course of the appeal hearing, on 9 November 1998, the appellant complained that prior to the events that were the occasion of her dismissal she had been the victim of sexual harassment by Mr Osborn. It is, in my opinion, a fair inference that her complaint about sexual harassment by Mr Osborn was not a free-standing complaint separate from her appeal against dismissal but was put forward as a reason for impugning Mr Osborn's dismissal decision.

    168. On 30 November 1998 the appellant received two letters from Mr Adamson. One letter told her that her appeal against dismissal had failed. The other letter told her that her sexual harassment complaint against Mr Osborn had been the object of a "full and thorough investigation" and that there was "insufficient evidence to establish a case against Mr Osborn".

    169. It is of relevance that the latter letter said that "members of staff did confirm that you had reported an incident to them and that you had requested that the information remain private". This comment is consistent with the appellant's evidence to the Employment Tribunal that she had not previously to 9 November 1998 made any formal complaint about the sexual harassment (see the Note of Evidence made by the Chairman of the Tribunal).

    170. The appellant's application to the employment tribunal was made on 18 February 1999. She complained of sexual harassment and unfair dismissal. A preliminary point was taken. The point was whether the application had been made within the prescribed three months. At a preliminary hearing to deal with the point the tribunal concluded (by a majority) that the appellant's employment had continued until 30 November 1998 and that, accordingly, her application was in time. In the course of their extended reasons the tribunal described the appellant's complaint as being "for a series of incidents of sex discrimination which lasted until early October 1998" but took the view that Mr Adamson's 30 November 1998 decision "could be in itself a continuing discrimination against her" (para 8).

 
continue previous