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
203. This decision and the Directive with which it was concerned apply to sex discrimination cases only. They do not apply to race discrimination or disability discrimination cases. Following the ruling by the Court of Justice, the case returned to the EAT. The EAT held that, in the light of the Court of Justice ruling, the words "a woman employed by him" in s.6(2) of the 1975 Act should be construed, in conformity with the Directive, as covering discrimination against former employees. Morison J declined to follow The Post Office v Adekeye  ICR 110. He held that the Court of Justice ruling had relieved him of the need to do so. In my respectful opinion it had not. There is no difference between the words used in the 1975 Act and those used in the 1976 Act with which Adekeye was concerned. The Court of Appeal decision on the 1976 Act words was just as applicable to the words in the 1975 Act. Moreover, the Directive did not have direct effect in the domestic law of this country. It required, if its terms differed from domestic law, to be implemented in domestic law by primary or subordinate legislation. I, of course, accept that domestic legislation intended to implement a Directive should, if possible, be construed in a manner consistent with the Directive. But the 1975 Act was not passed in order to implement the Directive. It preceded the Directive. It may be that the Government believed that no implementation measure was necessary because the 1975 Act did all that was required to comply with the Directive. But the Court of Appeal decision in Adekeye, coupled with the Court of Justice decision in Coote, showed, in my opinion, that that was not so. I do not think it was open to Morison J to disapply the Post Office v Adekeye.
204. In my opinion, save for cases where the relationship between employer and employee is still continuing notwithstanding the termination of the employment, the conclusions of the Court of Appeal in Adekeye were correct and should be followed. The 1976 Directive has now been amended by a new Directive, 2002/23/EC, which must be implemented at latest by 5 October 2005. If and to the extent that domestic law is inconsistent with these Directives it is for Government and Parliament to provide the remedy and not, in my opinion, for the Courts to do so.
205. I must now return to the individual appeals:(1)
Relaxion Group plc v Rys Harper
I would allow the appeal in this case. The appellant complains of sex discrimination in her ex-employer's handling of her appeal against dismissal. A complaint of that character is, in my opinion, covered by s.6(2) of the 1975 Act.(2)
D'Souza v Lambeth Borough Council
I would dismiss this appellant's appeal for the reasons given by my noble and learned friend, Lord Nicholls of Birkenhead. The statutory remedy of re-instatement is associated with the statutory alternative of compensation if re-instatement can be shown to be impracticable. It was so shown in proceedings to which the appellant was a party and by which he is bound. There is no room for a complementary claim that the Council's failure to re-instate him was discriminatory.(3)
In each of Kirker v British Sugar, Angel v New Possibilities NHS Trust and Bond v Hackney CAB the alleged acts of discrimination occurred after the relationship between the appellant and his or her ex-employer had come to an end. None of the appellants was, at the time, "a person whom [the alleged discriminator] employs" (s.4(2) of the 1995 Act). I would dismiss these appeals.(4)
In Jones v 3M Healthcare Ltd the courts below dismissed the case on the ground that at the time the alleged act of discrimination took place the appellant was no longer a person whom 3M Healthcare Ltd "employs". In my opinion, the appellant was entitled to a reasonable opportunity to remove his belongings, including his business cards, from the premises where he was previously employed. The relationship between him and his ex-employer that had been brought into existence when he entered their employ continued for that purpose during that period. If he had sought to remove his cards during that period and had been prevented from doing so as an act of victimization, the case would in my opinion have been covered by the 1975 Act. But he was dismissed in November 1997, his proceedings for unfair dismissal and disability discrimination were dismissed in August 1998 and he did not request the return of his cards until September 1999. A reasonable time for him to remove his belongings from his ex-employer's premises and to request their return had elapsed long before September 1999. By September 1999 the relationship between the appellant and 3M Healthcare Ltd had long since come to an end. His complaint is not in my opinion covered by the Act and I would dismiss his appeal.
206. Save that I have formed the view that the applicability of the three Acts should be tied to the continuance of the relationship between employer and employee rather than to the duration of the actual employment, I am in respectful agreement with the views about these appeals and the issues they give rise to that have been expressed by my noble and learned friend, Lord Hope of Craighead.
LORD RODGER OF EARLSFERRY
207. On one level these appeals raise a short point of construction of the words "a woman employed by him" in section 6(2) of the Sex Discrimination Act 1975 ("the 1975 Act"), "a person employed by him" in section 4(2) of the Race Relations Act 1976 ("the 1976 Act") and "a person whom he employs" in section 4(2) of the Disability Discrimination Act 1995 ("the 1995 Act"). In substance, however, the House has to decide whether, as the Court of Appeal have held, in terms of these anti-discrimination Acts it is quite lawful for employers to discriminate against their former employees in circumstances where it would be quite unlawful for them to discriminate against their current employees.
208. I gratefully adopt the detailed accounts of the facts and issues given by my noble and learned friends, Lord Nicholls of Birkenhead and Lord Hope of Craighead. As they show, allowing for the distinctive features of the 1995 Act, the objectives and, to a greater or lesser degree, the structure and terms of the three Acts are similar. Precisely because of that, it has come to be accepted that an interpretation of the wording of one Act will be a guide to the interpretation of the equivalent wording in another Act. Most notably, in Anyanwu v South Bank Student Union  UKHL 14;  ICR 391, 393, para 2, Lord Bingham of Cornhill said:
True to that spirit, in the hearings before the House counsel referred indiscriminately to authorities on the interpretation of the provisions in all three Acts. Nor did they suggest that any approach other than that indicated by Lord Bingham of Cornhill would be realistic or appropriate, even though, of course, the 1975 Act has to be interpreted in the light of the Equal Opportunities Directive 76/207/EEC, whereas there is at present no equivalent European dimension lying behind the other Acts.
209. Discrimination can take a variety of forms but all involve treating the person concerned less favourably than others. The law does not attempt to outlaw every form of undesirable discrimination. In Great Britain it concentrates on discrimination on the ground of sex, race and disability and then only in certain circumstances, including the employment field. In Northern Ireland the Fair Employment and Treatment (NI) Order 1998 adds discrimination on grounds of religious belief and political opinion. Before sex and race discrimination were made unlawful, employers would sometimes try to preserve the all-male or all-white character of their workforce by simply refusing to take on women or ethnic minority job applicants. Similarly, employers might refuse to employ disabled people in order to avoid having to make even minor adjustments for them. The three anti-discrimination Acts make such tactics unlawful: section 6(1)(c) of the 1975 Act and section 4(1)(c) of both the 1976 and 1995 Acts. Another form of discrimination was to offer to employ people but on less favourable terms. That is outlawed by paragraph (b) of the same subsections. Moreover, once the person is employed, the employer cannot discriminate by actually affording him less favourable terms of employment: section 4(2)(a) of both the 1976 and 1995 Acts. In the case of sex discrimination the mechanism is different: section 1 of the Equal Pay Act 1970 implies an equality clause into all contracts of employment. Where these provisions are observed, they go a long way towards ensuring that everyone has access to employment and enjoys the same contractual rights. If the employer fails to comply with his obligations under the contract of employment, the employee concerned has the usual remedies for breach of the contract.
210. Ensuring that all employees in similar positions have the same contractual rights is only a start. Employment is just as much about opportunities as about rights. Not for nothing was the body which was set up under the 1975 Act called the Equal Opportunities Commission. Employees do not have a contractual right to promotion, but they should have an opportunity to earn it. Similarly, certain types of training, with the prospect of a better job, may only be available to employees selected by the employer. The selection should be made fairly. The employer may run a social or recreational club which employees can apply to join. Again everyone should have an equal opportunity to join if they want to. If an employer were free to discriminate in these areas, which do not involve contractual rights as such, then those affected would be marginalised and unable to achieve their full potential. So one important purpose of the anti-discrimination Acts is to prevent employers from exercising their freedom of choice in such matters so as to discriminate against employees on the ground of their sex, race or disability. That is achieved by the provisions which lie at the heart of these appeals. In the case of the 1975 Act the relevant provision is section 6(2), but it is convenient to set out subsection (1) also:
As subsection (2) shows, the anti-discrimination Acts are not really concerned with employees' rights under their contracts of employment. So, for instance, where a contract of employment is tainted by illegality, an employee may none the less complain that her employer discriminated against her on the ground of her sex by dismissing her, since both the Equal Treatment Directive and the 1975 Act are designed to provide effective relief in respect of discriminatory conduct "rather than relief which reflects any contractual entitlement which may or may not exist": Hall v Woolston Hall Leisure Ltd  EWCA Civ 170;  ICR 99, 119F - G, para 67 per Mance LJ. As Peter Gibson LJ put it, at p 113B - C, para 46:
Mummery J had made the same point when, in giving the judgment of the EAT in Leighton v Michael  IRLR 67, 69, para 29, he said that the claim of sex discrimination "does not involve enforcing, relying on or founding a claim on the contract of employment." Employees invoke the Acts not to enforce their contractual rights but to enforce their statutory rights not to suffer discrimination "in the employment field", inter alia in respect of the opportunities to which the employer affords access.
211. Therefore, although being employed is one of the keys which unlocks access to the rights and remedies conferred by the anti-discrimination Acts, to a considerable extent those Acts are actually concerned with discrimination in relation to the various kinds of opportunities that employees may enjoy in addition to any contractual rights. Of course, not even all contractual rights end on the termination of employment: an employee may still have both rights and obligations under the contract. Most obviously, an employee may have a right under his contract to be paid a pension or to continue to enjoy free medical insurance, while he may also be bound by a restrictive covenant in the contract. Not only an employee's rights and obligations under the contract of employment can continue after the employment itself comes to an end: an employer may continue to afford his former employees opportunities to enjoy some of the additional non-contractual benefits, such as access to sports or other recreational and social facilities. Since the anti-discrimination Acts are not tied to contractual rights and obligations, there is in principle no reason why the Acts should cease to have effect in respect of these continuing opportunities. I therefore have difficulty in seeing why Parliament, however cautious its approach, would ever have intended that it should be lawful for an employer to discriminate against a former employee in these respects. The idea, for instance, that Parliament intended that, after the 1976 Act was in force, an employer should still be able to bar a black former employee from entering the employer's social club while allowing white former employees to continue to enjoy the facility strikes me as untenable.
212. The same applies to the provision of references. In some cases the employee may have a contractual right, whether express or implied, to be supplied with a reference. But even where that is not so, since an employee or former employee will often stand little chance of getting a new job without a reference, an employer will recognise at least a moral duty to provide one: Spring v Guardian Assurance Plc  2 AC 296, 335C per Lord Slynn of Hadley. And in providing the reference he owes a duty of care to his employee or former employee. Again, I have the greatest difficulty in believing that Parliament could have intended that it should be unlawful for an employer to discriminate in giving or withholding references for existing employees but perfectly lawful for him to do so in the case of ex-employees. Parliament often has to draw lines - and indeed does so explicitly in various ways in the anti-discrimination Acts, e g by limiting their application in the case of domestic employment. It is not hard to see the reason for that. It is very much harder to see why Parliament would have chosen to draw an arbitrary line through the continuing effects of the employment relationship rather than leave the ban on discrimination to expire as and when those effects themselves were spent. In particular, I am not impressed by the spectre of the supposed difficulties for employers if proceedings could be brought for discrimination in failing to provide a reference or in providing an unsatisfactory reference some time after the employee had left his employment. If such proceedings were brought, there is little reason to suppose that the difficulties for the employer would be significantly greater than those entailed in defending a negligence claim in relation to a request for a reference made at about the same time. And, of course, in any such proceedings the applicant will have to show that the former employer treated him or her less favourably than other former employees in similar circumstances.
213. As an argument against holding that the Acts make it unlawful to discriminate against former employees, it is pointed out - correctly - that the pre-legislative materials make no mention of discrimination against them. Moreover, it is said, if the draftsman of section 6 of the 1975 Act, for instance, had intended to cover former employees, he might have been expected to do so specifically in a separate subsection (3), to mirror subsection (1) dealing with job applicants. These arguments, which are interlinked, really amount to saying that the lack of any positive sign that Parliament considered the position of former employees shows that it did not in fact intend to make discrimination unlawful in the case of former employees. So in Rhys-Harper v Relaxion Group plc  EWCA Civ 634;  ICR 1176 the Court of Appeal were correct to interpret subsection (2) as they did.
214. At first sight the argument may appear quite persuasive, on mature reflection less so. For the reasons I have given, I do not find the lack of discussion of the particular position of former employees significant. What would have been significant, not to say remarkable, would have been any hint that the government of the day, or Parliament itself, ever contemplated that it was to remain lawful for employers to discriminate against former employees on, say, racial grounds. So far as the drafting of the sections is concerned, if discrimination against job applicants was to be outlawed, a separate provision was obviously necessary since on no view can they fall within subsection (2). That subsection is drafted to deal with the very different situation of people who have gone a step further and have actually been employed. Former employees are different from job applicants in this respect. Some of the kinds of discrimination listed in subsection (2) - e g failing to offer opportunities for promotion or dismissing someone - are such that only a current employee can be subjected to them. Others could apply to both current and former employees. It is not suggested that there is some other class of conduct by employers that would have to be made unlawful solely in the case of former employees. Therefore, the provision as drafted, making it unlawful for employers to discriminate against employees in various ways, could in principle operate perfectly satisfactorily in respect of former employees without there being any need either to discuss their position separately or to make separate provision for them in a further subsection. Everything thus depends on whether the wording of the provision in subsection (2) is capable of covering both current and former employees - which is simply the point at issue.
215. The words in section 6(2) of the 1975 Act which are said to confine the provision to current employees are "a woman employed by him at an establishment in Great Britain". They comprise the noun phrase "a woman" and the non-finite clause "employed by him at an establishment in Great Britain" which modifies the noun phrase. In that clause "employed" is a passive participle and, as such, it is inherently ambiguous. Discounting any other possibility, the words may be the equivalent of "a woman who is employed by him at an establishment in Great Britain" or "a woman who is or was employed by him at an establishment in Great Britain". One cannot tell how the participle is to be interpreted from looking at these words alone: it must be interpreted in the context of the provision as a whole. Often the wider context in which the participle is used will point definitely one way or the other. So, for instance, if I say "John is very worried about productivity in his firm and is inviting everyone employed by him to a meeting to discuss improvements", the obvious meaning is that the invitation is addressed to current employees. On the other hand, sometimes the context may not fully resolve the matter. If I say "John, who has been in business for 20 years, is inviting everyone employed by him to a party to celebrate", someone listening to me might not be sure what to expect but he would not be unduly surprised to find former as well as current employees at the party. Similarly, in my view, the context of the words within the legislative sentence in section 6(2) leaves the matter open: looked at merely in that context, the passive participle could be interpreted in either way. Although most of the opportunities listed in paragraph (a) may be relevant only to current employees, the examples that I have already given are enough to show that the paragraph could sensibly apply to the situation of former employees, while in paragraph (b) the notion of "subjecting someone to a detriment" is so broad that, indisputably, it could apply to refusing a reference to a former employee, for instance. Unlike section 6(2), section 4(2) of the 1976 Act uses the word "employee" but, as Pill LJ noted in Rhys-Harper v Relaxion Group plc  ICR 1176, 1182, para 13, the presence or absence of that term cannot be critical to the interpretation of these provisions. In what is largely a matter of impression, I am respectfully unable to share the view of Peter Gibson LJ in Post Office v Adekeye  ICR 110, 118B that in section 4(2) of the 1976 Act the crucial words can only mean "in the case of a person who is employed by him". Since that is not the only possible meaning in either the 1975 or 1976 Act, the wider considerations discussed above persuade me that the provisions should be interpreted as making it unlawful to discriminate against former employees as well as current employees if there is a substantive connexion between the discriminatory conduct and the employment relationship. In other words the former employer must discriminate qua former employer. I find nothing in the other provisions on employment in the statutes to invalidate that interpretation. Despite the difference in language, there is no indication that Parliament intended the 1995 Act to be different in this respect. Therefore, given the similarity of the general aims of the anti-discrimination Acts, I would interpret the words "a person whom he employs" in section 4(2) in the same way. The House is not called on in these appeals to decide whether the duty in section 6 of that Act also applies in the case of former employees.
216. I should add that, even if I had not been disposed to construe section 4(2) of the 1976 Act in this way, I should in any event have concluded that the decision in Post Office v Adekeye was wrong on the basis of the narrower line of reasoning adopted by my noble and learned friend, Lord Scott of Foscote. Unfortunately, in an organisation where racial discrimination is practised an employee is just as liable to encounter it in the internal appeal as in the original dismissal. Reluctantly, the Court of Appeal felt obliged to hold, however, that, while it would have been unlawful for the Post Office to discriminate against Ms Adekeye when dismissing her, it would have been perfectly lawful for them to do so when determining her internal appeal from that self-same dismissal. The result is so startling as in itself to cast doubt on the construction. And indeed, even on a fairly strict construction, it would not have been difficult to regard the applicant as "a person employed by" the Post Office in terms of section 4(2). After all, at the time of the internal appeal the employment relationship was not severed irrevocably: if the appeal had succeeded, the applicant would have been reinstated as an employee. Only a rather literal, as opposed to a purposive, reading of the words "a person employed by him" would lead to the conclusion that someone in that twilight zone was no longer "employed" and had lost her rights under section 4(2). For the reasons I have given, however, I prefer to approach the matter on the footing that, even if Ms Adekeye was indeed to be regarded as a former employee at the time of her internal appeal, she was still within the scope of section 4(2).
217. Compelling support for the interpretation of section 6(2) of the 1975 Act which I prefer is to be found in the Community law background. The 1975 Act, which was passed while the Equal Treatment Directive was in preparation, was not subsequently amended when the directive came into force. In that situation, of course, as was explained by the Court of Justice in Marleasing SA v La Comercial Internacional de Alimentación SA C-106/89  ECR I-4135, 4159, para 8, when interpreting the 1975 Act, any tribunal or court in this country
218. Article 5(1) of the Equal Treatment Directive provides:
Articles 6 and 7 are in these terms:
Despite the specific reference to retaliation by way of dismissal in article 7, in Coote v Granada Hospitality Ltd C-186/97  ICR 100, 113, paras 27 and 28, the Court of Justice held that, having regard to the objective of the directive and the fundamental nature of the right to effective judicial protection,