House of Lords
|Session 2002 - 03
Publications on the Internet|
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
OF THE LORDS OF APPEAL
FOR JUDGMENT IN THE CAUSE
Relaxion Group plc (Respondents)
Rhys-Harper (FC) (Appellant)
London Borough of Lambeth (Respondents)
3M Healthcare Limited (Respondents)
and three other actions
THURSDAY 19 JUNE 2003
The Appellate Committee comprised:
Lord Nicholls of Birkenhead
Lord Hope of Craighead
Lord Hobhouse of Woodborough
Lord Scott of Foscote
Lord Rodger of Earlsferry
HOUSE OF LORDS
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
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
 UKHL 33
LORD NICHOLLS OF BIRKENHEAD
1. The principal question raised by these appeals is whether discriminatory acts done by an employer after termination of an employee's contract of employment are outside the scope of the anti-discrimination legislation. The first appeal raises this question in the context of the Sex Discrimination Act 1975, the second appeal in the context of the Race Relations Act 1976, and the third appeal in the context of the Disability Discrimination Act 1995. In each case the issue has been decided as a preliminary point, without a full investigation of the facts. The facts relevant for the purpose of this preliminary point, as found or agreed for this purpose, can be summarised as follows.
The sex discrimination case: Ms Rhys-Harper
2. The discriminatory act alleged in the sex discrimination case is a little unusual. It relates to an employer's failure properly to investigate a sexual harassment complaint first made after the termination of the contract of employment. Christine Rhys-Harper was employed by Relaxion Group Plc, now known as Leisure Connection Plc, as a lifeguard and general assistant at the Helston sports centre. In October 1998 she was summarily dismissed on the grounds of misconduct, after a disciplinary hearing conducted by her manager, Mr Osborn. She had been rude to customers. Her contract of employment ended on 22 October.
3. She then availed herself of her right to appeal against the decision to dismiss her. The appeal hearing took place on 9 November. It was conducted by the general manager, Mr Adamson. In the course of this hearing Ms Rhys-Harper complained that during her employment Mr Osborn had regularly subjected her to sexual harassment. On 30 November she was informed that her appeal had been dismissed. She was told also that the company had investigated the sexual harassment complaint, and had concluded there was insufficient evidence to establish a case against Mr Osborn.
4. On 15 February 1999 Ms Rhys-Harper made an application to an employment tribunal in respect of unfair dismissal and sex discrimination. The discrimination alleged was sexual harassment during her employment and, additionally, failure to carry out a proper investigation of her sexual harassment complaint. In April 1999, after a preliminary hearing, the tribunal ruled that the complaint to the tribunal regarding the series of incidents of sexual harassment was made outside the prescribed period of three months. The claim should have been lodged by early January 1999. But Relaxion's decision, given on 30 November after investigation of Ms Rhys-Harper's complaint, could be in itself a continuing discrimination against her. She had not been seen during the investigation, nor had she been able to challenge the evidence of witnesses. So time ran from 30 November, and her sex discrimination application was in time.
5. Relaxion appealed against this ruling in respect of the alleged post-termination discrimination. The Employment Appeal Tribunal, presided over by Judge Collins, allowed the appeal. The tribunal rightly regarded itself as bound by the decision of the Court of Appeal in Post Office v Adekeye  ICR 110. Adekeye's case was a decision in respect of the Race Relations Act, but the relevant provisions in the Sex Discrimination Act are indistinguishable. The Court of Appeal, comprising Pill, Mantell and Buxton LJJ, dismissed Ms Rhys-Harper's appeal against that decision: see  EWCA Civ 634,  ICR 1176. Buxton LJ said, at para 25, p 1185, that Peter Gibson LJ's conclusion in Adekeye's case was 'entirely persuasive'. Ms Rhys-Harper has now appealed to your Lordships' House.
The racial discrimination case: Mr D'Souza
6. The complaint in the racial discrimination case also is a little unusual. The discrimination alleged is the employer's failure to comply with a reinstatement order made by an employment tribunal. Donald D'Souza was employed by the London Borough of Lambeth as an information systems group manager until his dismissal in January 1990. The employment tribunal upheld a complaint by Mr D'Souza that he had been unfairly dismissed, discriminated against on racial grounds and victimised within the meaning of the Race Relations Act. The tribunal ordered the council to reinstate Mr D'Souza by 16 January 1993. On 25 March 1993 the council told Mr D'Souza it was not willing to do so.
7. Two years later, on 11 July 1995, the employment tribunal held that it had not been practicable for the council to reinstate Mr D'Souza. By a decision sent to the parties on 18 October 1995, an award of compensation was made in favour of Mr D'Souza, having regard to the council's failure to reinstate Mr D'Souza. Meanwhile, in July 1995 Mr D'Souza had made two further applications to the employment tribunal, the subject of each being the council's alleged racial discrimination and victimisation in deciding not to reinstate him. The employment tribunal held that, following the decision in Adekeye's case, it had no jurisdiction to hear these applications.
8. The Employment Appeal Tribunal, under the presidency of Morison J, dismissed an appeal by Mr D'Souza. In so doing the tribunal followed Adekeye's case, as it was obliged to do. But the tribunal did not disguise its unease, saying that 'we are of the view that the Adekeye decision fails to give effect to the intention of Parliament to provide a comprehensive legislative code'. The Court of Appeal, comprising Schiemann and Robert Walker LJJ and Lloyd J, dismissed Mr D'Souza's further appeal: see  EWCA Civ 794. Schiemann LJ said, at paragraph 17, that the court saw 'some force' in the submission that the decision in Adekeye's case could have gone the other way.
9. Mr D'Souza has now appealed against this decision. His appeal is supported by the Commission for Racial Equality.
The disability discrimination cases
10. The third appeal comprises four disability cases. Each case involves victimisation. Each applicant claims he was discriminated against because he had previously made an application to an employment tribunal. In three of the four cases the alleged victimisation concerns the provision of a reference after the termination of the contract of employment.
11. Mr Kirker's complaint is of this character. Nicholas Kirker was employed by British Sugar plc as a shift chemist until he was dismissed in March 1997. He has very poor eyesight and is registered as fully blind. He claimed he had been discriminated against as a disabled person and unfairly dismissed. Both claims succeeded in the employment tribunal and were upheld by the Employment Appeal Tribunal.
12. In August 1997 he applied for a job as a warehouse operative, through a company called Ambitions Personnel. He gave British Sugar as a referee. He was not appointed to the post he sought, although the position remained unfilled.
13. Mr Kirker then made an application to an employment tribunal against Ambitions Personnel, alleging disability discrimination. He later joined British Sugar, alleging victimisation. He claimed that the reference supplied by British Sugar to Ambitions Personnel was unsatisfactory. British Sugar successfully applied to have the claim against it struck out, on the basis of the Adekeye decision. The tribunal was plainly unhappy at being obliged to follow and apply this decision, observing that 'a more purposive approach might now find more support in today's social and judicial climate'.
14. Next, Mrs Angel. Diane Angel was employed by New Possibilities NHS Trust until July 1998, when she was dismissed from her nursing post because she suffered from back and hip problems. She made a successful claim to an employment tribunal in respect of her dismissal. In January 2000 the Trust supplied a reference for her to a prospective employer. This contained material she considered to be adverse because of her earlier proceedings. In March 2000 she presented a second application to an employment tribunal, complaining of victimisation. Following a preliminary hearing the tribunal ruled, in August 2000, that it had no jurisdiction to hear the complaint.
15. The third in this trilogy of 'reference' cases is that of Mrs Bond. Charmaine Bond suffers from back injuries sustained in a road accident. She was employed by Hackney Citizens' Advice Bureau until she was made redundant in October 1999. She then made three successive applications to an employment tribunal: in November 1999, when she claimed she had been discriminated against on account of her disability; in January 2000, when she alleged breach of contract and unlawful deduction of wages; and in June 2000, when she presented the application now under consideration. In this application she claimed she had been victimised in that the bureau had refused to supply her with a reference and had given false information in reply to enquiries by two companies which had insured her property in respect of mortgage repayments. The alleged acts of victimisation all related to periods after her employment with the bureau had come to an end. In October 2000 the tribunal dismissed the claim of victimisation, because she was not a person whom the bureau was employing at the relevant date. The tribunal considered this outcome was 'unsatisfactory and wrong in principle'.
16. The fourth disability discrimination case is that of Mr Jones. Gerald Jones was employed by 3M Healthcare Ltd as a computer network analyst until dismissed in November 1997. He brought proceedings, which were unsuccessful, for unfair dismissal and sex and disability discrimination. While employed Mr Jones had received business cards from other organisations. He had left these cards in his office when his employment ended. In September 1999 he asked 3M to return the cards, but the company declined to do so. Mr Jones then brought proceedings in the county court, and the cards were delivered to him pursuant to an order of the court made in February 2000. Thereafter, in March 2000, Mr Jones made an application to an employment tribunal, complaining that in respect of 3M's earlier refusal to return the cards he had been subjected to victimisation and discrimination on the grounds of sex and disability, the disability being severe clinical depression. The tribunal held it had no jurisdiction to hear the claims under the Disability Discrimination Act, because at the time he was not employed by 3M, but that it did have jurisdiction to hear the victimisation claim made under the Sex Discrimination Act. This conclusion, which draws a distinction between a claim for victimisation under the Sex Discrimination Act and a similar claim under the Disability Discrimination Act, derives from the impact of the Equal Treatment Directive (Council Directive No 76/207/EEC). This directive is applicable to sex discrimination but not racial or disability discrimination.
17. All four disability claimants appealed from the adverse decisions of the employment tribunals. Their appeals were heard together by the Employment Appeal Tribunal under the presidency of Lindsay J. After reviewing the authorities the appeal tribunal dismissed the appeals. In doing so Lindsay J commented that this outcome was unsatisfactory, adding,  ICR 341, 358:
18. The four claimants then appealed to the Court of Appeal. The court, comprising Pill, Mummery and Latham LJJ, dismissed the appeals: see  EWCA Civ 304;  ICR 1124. Mummery LJ said, at paragraphs 12 and 21, that the meaning of the legislation was plain. This further appeal to your Lordships' House is supported by the Disability Rights Commission.
The statutory provisions
19. The basic structure of the Sex Discrimination Act and the Race Relations Act is familiar enough. These are parallel Acts, using the same concepts. Much of the language is identical. Each statute defines discrimination, and prohibits discriminatory conduct over a wide range of activities in specified fields, of which the primary one is employment. Sanctions are provided for breaches of the prohibitions. Each Act established a commission: the Equal Opportunities Commission, in the case of the Sex Discrimination Act, and the Commission for Racial Equality, in the case of the Race Relations Act. The duties of the Equal Opportunities Commission were to work towards the elimination of sex discrimination, to promote equality of opportunity between men and women, and to keep under review the working of the Act and the Equal Pay Act 1970. The Commission for Racial Equality was given comparable duties regarding racial discrimination. The Disability Rights Commission, established by the Disability Rights Commission Act 1999, exercises similar functions regarding disability discrimination.
20. I can note first the relevant provisions of the Sex Discrimination Act. Nothing turns, for the purpose of the present appeals, on the precise wording of the definition of sex discrimination in sections 1 and 2. Suffice to say, under section 1(1)(a) a person discriminates directly against a woman, in any circumstances relevant for the purposes of any provision of the Act, if 'on the ground of her sex he treats her less favourably than he treats or would treat a man'. Under section 1(1)(b) discrimination also embraces 'indirect' discrimination. Stated very broadly, this consists of applying to a woman a requirement or condition which would equally be applied to a man but which can less readily be complied with by women. Section 2 applies the section 1 definition in the converse case of less favourable treatment of a man.
21. Section 4 provides that discrimination also includes victimisation. Essentially this comprises treating a person less favourably in retaliation for her having exercised her rights under the Act or under the Equal Pay Act 1970 or having assisted others to do so. Section 4(1) provides:
Subsection (1) does not apply to treatment of a person by reason of a false allegation not made in good faith.
22. Against the background of this definition of discrimination, including as it does victimisation under section 4 as well as sex discrimination under sections 1 and 2, I turn to section 6. This concerns discrimination by employers. Section 6(1) renders unlawful certain types of conduct by a prospective employer:
23. Section 6(2) is the key section for present purposes. I have emphasised the crucial phrase:
24. The structure and provisions of the Race Relations Act 1976 are in substantially identical terms subject, of course, to discriminatory treatment being related to racial grounds and not, as in the Sex Discrimination Act 1975, to the ground of sex. 'Racial grounds' means grounds of colour, race, nationality or ethnic or national origins. The definitions of racial discrimination and victimisation in section 1(1) and section 2 of the Race Relations Act correspond to the definitions of sex discrimination and victimisation in section 1(1) and section 4 of the Sex Discrimination Act. Similarly, the prohibition of discrimination against applicants and employees in section 4 of the Race Relations Act corresponds in all respects now material to the like prohibition in section 6 of the Sex Discrimination Act. Section 4(2) provides, with emphasis added:
25. The structure and scope of the relevant provisions in the Disability Discrimination Act 1995 differ in some respects from the corresponding provisions in the other two Acts. But the crucial provisions concerning discrimination by employers, although couched in slightly different language, are in the relevant respects to the same effect. Section 1 of the Act defines a disabled person as a person who has a disability. A person has a disability 'if he has a physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities'. Section 4(1) prohibits discrimination against applicants for employment. Section 4(2) prohibits discrimination against employees:
This subsection reproduces, in a more modern format and with minor linguistic changes, the corresponding provision in section 4(2) of the Race Relations Act. For present purposes the only difference of note is that section 4(2) of the Disability Discrimination Act prohibits discrimination by an employer against 'a disabled person whom he employs'. As already mentioned, the corresponding phrase in section 6(2) of the Sex Discrimination Act and section 4(2) of the Race Relations Act is a person 'employed by him'.
26. Discrimination is defined in the Disability Discrimination Act in terms which, particularly in one respect, give this expression a wider meaning than under the other two Acts. Under section 5(1) an employer discriminates against a disabled person if, for a reason which relates to the disabled person's disability, he treats him less favourably than he treats others to whom that reason does not apply, and he cannot show that the treatment is justified. As under the other two Acts, discrimination also includes discrimination by way of victimisation: see section 55. Additionally, however, under the Disability Discrimination Act discrimination includes failure to comply with a section 6 duty which the employer cannot show is justified. A section 6 duty is a duty imposed on an employer to make adjustments to his arrangements, or to the physical features of premises occupied by him, which place the disabled person at a substantial disadvantage in comparison with persons who are not disabled. For this purpose 'arrangements' means arrangements for determining to whom employment should be offered, and terms, conditions or arrangements on which employment, promotion, a transfer, training or other benefit is offered or afforded.
27. Each of the three Acts contains enforcement provisions. Under section 63 of the Sex Discrimination Act a complaint that an unlawful act of discrimination has been committed in the employment field may be made to an employment tribunal. Similar provisions are to be found in the Race Relations Act, section 54, and the Disability Discrimination Act, section 8.
28. I should next note Council Directive No 76/207/EEC, of 9 February 1976. This directive, known colloquially as the Equal Treatment Directive, is concerned only with sex discrimination. The purpose of the directive was to put into effect in member states the principle of equal treatment for men and women in respect of several matters, including access to employment and working conditions: article 1. Article 5 provided that 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 the grounds of sex. Article 6 provided that member states should 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 article 5 to pursue their claims by judicial process. Article 7 provided that member states should take the necessary measure to protect employees against dismissal by their employers 'as a reaction to a complaint within the undertaking or to any legal proceedings aimed at enforcing compliance with the principle of equal treatment'. In a word, victimisation. The Sex Discrimination Act gave effect to this directive in this country.
29. The question whether conduct of an employer after termination of the contract of employment can constitute unlawful discrimination appears to have arisen for decision for the first time in a case which came before the Employment Appeal Tribunal in 1993: Nagarajan v Agnew  ICR 520. That was a claim under the Race Relations Act. Knox J said that there has to be a 'subsisting employment relationship' at the time when the events contemplated in section 4(2) of the Act occur. The majority of the events listed in that subsection can occur only during employment, the whole provision is couched in the present tense, and had Parliament intended to include post-employment benefits, it would have made that intention explicit: see  ICR 520, 530-531.
30. Three years later the point came before the Court of Appeal, on another claim of racial discrimination: Post Office v Adekeye  ICR 110. Omalara Adekeye was employed by the Post Office as a customer care officer until summarily dismissed for misconduct. She utilised the internal appeal procedures of the Post Office to appeal against her dismissal. Her appeal was unsuccessful. She then presented a complaint to an employment tribunal, asserting she had been the subject of unlawful racial discrimination in the conduct and outcome of her appeal. The Court of Appeal, comprising Hirst, Peter Gibson and Pill LJJ, followed the decision in the Nagarajan case and held that the employment tribunal had no jurisdiction to entertain Ms Adekeye's complaint. Section 4(2) protects only those whose employment continues at the time of the act of discrimination: see page 118. Peter Gibson and Pill LJJ considered it was 'unsatisfactory' that the Act does not extend to give a remedy to an ex-employee pursuing an appeal against dismissal.
31. Meanwhile, the question of jurisdiction regarding post-termination conduct had arisen in the context of a victimisation claim. Belinda Coote presented a complaint against her former employer, Granada Hospitality Ltd. She had been employed as a bowling centre manager until dismissed. She brought a claim for sex discrimination against Granada, asserting she had been dismissed because of pregnancy. That claim was settled. Subsequently she presented another complaint, asserting that Granada's refusal to provide a reference to an employment agency was in retaliation for the claim she had previously brought against Granada. The Employment Appeal Tribunal referred a question to the European Court of Justice.