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
32. The European Court held that the 'principle of effective judicial control' laid down in article 6 would be deprived of an essential part of its effectiveness if the protection afforded did not cover retaliatory steps. Fear of such retaliation, if no legal redress were available, might deter employees from pursuing sex discrimination claims. That would be liable seriously to jeopardise the aim of the Equal Treatment Directive. The court rejected the United Kingdom government's argument that retaliatory steps were outside the scope of the directive if taken after the employment relationship had ended: see Coote v Granada Hospitality Ltd  ICR 100.
33. The Employment Appeal Tribunal then resumed its hearing of Ms Coote's appeal: Coote v Granada Hospitality Ltd (No 2)  ICR 942. In the light of the judgment of the European Court the appeal tribunal, presided over by Morison J, declined to follow Adekeye's case. The phrase 'in the case of a woman employed by him' in section 6(2) of the Sex Discrimination Act was capable of embracing the case of a woman 'who has been employed by him'. Thus it was possible to construe section 6(2) in a way which would conform with the Equal Treatment Directive as authoritatively interpreted by the European Court. Section 6(2) should be so interpreted. Accordingly, the employment tribunal had jurisdiction to entertain Ms Coote's claim even though the act of victimisation of which she complained had occurred after her dismissal.
The interpretation of the legislation: 'employed by him' and 'whom he employs'
34. Two points relevant to the interpretation of the legislation are tolerably clear. First, the decisions in Adekeye's case and Coote v Granada Hospitality Ltd (No 2) are inconsistent. Coote's case was a case of victimisation, Adekeye's case seemingly was not. But, for the purpose now in hand, it is not possible to differentiate between victimisation and other forms of discrimination. Section 6(2) of the Sex Discrimination Act, containing the phrase 'employed by him', is a single provision governing all forms of discrimination prohibited by that subsection. The proper interpretation of section 6(2), whatever it may be, applies equally to all forms of discrimination prohibited by that subsection, sex discrimination as defined in sections 1 and 2 as well as victimisation as defined in section 4. The position is the same under section 4(2) of the Race Relations Act and section 4(2) of the Disability Discrimination Act.
35. Next, although this may be more controversial, section 6(2) of the Sex Discrimination Act, section 4(2) of the Race Relations Act and section 4(2) of the Disability Discrimination Act all bear the same meaning on the point now in issue. (In saying this I am leaving aside for the moment any special implications the Equal Treatment Directive may have on the interpretation of the Sex Discrimination Act.) The only distinction between the language of these three Acts is the distinction already mentioned: the Sex Discrimination Act and the Race Relations Act use the phrase 'employed by him', and the Disability Discrimination Act uses the expression 'whom he employs'. I consider this is a distinction without a difference. In the context of section 6(2) of the Sex Discrimination Act and section 4(2) of the Race Relations Act, the phrase 'employed by him', although ambiguous, is more naturally to be read as having the meaning adopted when the phrase was reproduced in section 4(2) of the Disability Discrimination Act: a person 'whom he employs'.
36. Translated into practical terms, where does this lead? The context in which these expressions are used includes benefits arising from a contract of employment. A contract of employment creates an employment relationship between two persons, an employer and an employee. It is a matter of ordinary experience that incidents of the employment relationship thus created often continue beyond the termination of the contract of employment which gave rise to the relationship. When a contract of employment ends the employee ceases to be obliged to work for the employer, and the employer ceases to be obliged to employ the employee. But the ending of these obligations does not normally signify a complete end to all aspects of the relationship between employer and employee. Frequently contractual obligations, express or implied, accrue or continue after the period of employment has come to an end. An employee may be subject to obligations of confidentiality or restrictions on where he may work or for whom he may work. An employer may be subject to obligations regarding pension rights or bonus payments. These obligations are matters of contractual right. Frequently also, an employee continues to enjoy, although not as a matter of contractual entitlement, other benefits arising in respect of his employment. One important example, of everyday occurrence, is the opportunity to obtain a reference to assist the employee in obtaining a new job. Another example is the employee's opportunity to have recourse to internal appeal or grievance procedures in respect of his dismissal. Sometimes this is a matter of contractual right, sometimes not.
37. To my mind the natural and proper interpretation of section 6(2) of the Sex Discrimination Act and the corresponding provisions in the other two Acts in this context is that once two persons enter into the relationship of employer and employee, the employee is intended to be protected against discrimination by the employer in respect of all the benefits arising from that relationship. The statutory provisions are concerned with the manner in which the employer conducts himself, vis-à-vis the employee, with regard to all the benefits arising from his employment, whether as a matter of strict legal entitlement or not. This being the purpose, it would make no sense to draw an arbitrary line at the precise moment when the contract of employment ends, protecting the employee against discrimination in respect of all benefits up to that point but in respect of none thereafter.
38. If such a hard and fast line were drawn at this point it would mean that the employee who asks for a reference before he retires from his employment is protected but the employee who asks for a reference the day after he left is not. It would mean that the employee who is dismissed with notice and whose appeal is heard before his notice expires is protected against discrimination in his recourse to the employer's appeal procedure, but the employee who is dismissed summarily and without notice is not. It would mean that retaliatory action taken by an employer before the contract of employment ends is within the scope of the legislation, but retaliatory action taken later, for instance, regarding bonus payments, is not.
39. This cannot have been the intention of Parliament. Dismissal is one of the matters in respect of which discrimination is expressly prohibited by the statutes. Parliament cannot have intended that this prohibition should include an appeal decision regarding dismissal if the appeal is heard before the dismissal takes effect but not if it is heard later. That would be palpably absurd. Dismissal cannot have been intended to have such an artificially limited meaning. Nor can it have been intended that reprisals may be exacted, so long as they are postponed until after the employee has been dismissed. Nor can a sensible distinction be drawn between giving a reference the day before employment ends and giving a reference the day after.
40. I recognise that a line has to be drawn somewhere between what is prohibited and what is not. I recognise also the pioneering character of the anti-discrimination legislation. Parliament may well have chosen to advance cautiously, one step at a time, while experience accumulates on the practical working of the legislation and guidance is forthcoming from the expert commissions entrusted with the task of keeping the law under review. But these considerations do not point to the conclusion that, when enacting this new form of legislation, Parliament intended to ban discrimination in respect of some of the benefits in respect of an employee's employment but not others, with the distinction between the two categories being self-evidently capricious.
41. Nor am I impressed with the argument that prohibiting post-termination acts of discrimination would expose employers to 'long tail' liability. Fears have been expressed about the potentially burdensome nature of this liability regarding, in particular, the provision of references. Liability in respect of post-termination acts of discrimination would, it is said, enable a discontented former employee to harass his former employer, perhaps years later, when he is provided with an unfavourable reference or a reference is refused altogether.
42. There are several strands interwoven in this expression of concern. They must be separated and considered one by one. First, whenever an employer gives a reference for a person currently employed by him he is subject to common law duties of care as well as statutory non-discrimination obligations. I can see no reason why in this regard the position should be different, or regarded as more onerous, if a reference is provided for a former employee as distinct from a current employee. If an employer provides a reference for a former employee he must do so as fairly as he would for a current employee. Second, regarding refusal to provide a reference, the question of discrimination can only arise if the employer's normal practice is to provide references for former employees on request. If that is the employer's practice, there is surely nothing burdensome in requiring him not to discriminate in the way he implements this practice. He must not treat one former employee less favourably than another on grounds of sex or race or disability or by way of victimisation. If, however, it is not the employer's practice to give references for former employees, for example, after the lapse of a certain time, then refusal of a reference after that time cannot give rise to a well founded discrimination claim. In such a case there would be no question of the employer subjecting the former employee to a detriment. Third, the prospect of former employers being harassed with unfounded, vexatious claims cannot be a good reason for refusing to entertain well founded claims. The appropriate response to this understandable concern of employers is for employment tribunals to be alert to strike out manifestly ill founded claims as vexatious.
43. For these reasons I respectfully disagree with the decision in Adekeye's case. I understand the reasoning which attracted the Court of Appeal. But I consider this reasoning attaches insufficient importance to the capricious results which follow from a too literal interpretation of the statutory language. The Adekeye interpretation is insufficiently purposive. It pays insufficient heed to the context.
44. The preferable approach is to recognise that in each of the relevant statutory provisions the employment relationship is the feature which triggers the employer's obligation not to discriminate in the stated respects. This is the connection between two persons which Parliament has identified as requisite for these purposes. Once triggered, the obligation not to discriminate applies to all the incidents of the employment relationship, whenever precisely they arise. For the reasons already given, this obligation cannot sensibly be regarded as confined to the precise duration of the period of employment if there are incidents of the employment which fall to be dealt with after the employment has ended. Some benefits accrue during the period of employment, some afterwards. For the purposes of discrimination, there is no rational ground for distinguishing the one from the other. They all arise equally from the employee's employment.
45. To be an 'incident' of the employment relationship for this purpose the benefit in question must arise between employer or former employer as such and employee or former employee as such. A reference is a prime example. Further, save perhaps in exceptional circumstances which it is difficult to envisage, failure to provide a non-contractual benefit will not constitute a 'detriment', or discrimination in an opportunity to receive a 'benefit', within the meaning of the anti-discrimination legislation unless the non-contractual benefit in question is one which normally is provided, or would be provided, to others in comparable circumstances. This is so with regard to current employees. It is equally so with former employees. But I stress this is not to say that an employer's practice regarding current employees is to be treated as equally applicable to former employees. This is emphatically not so. The two situations are not comparable. What is comparable is the way the employer treats the claimant former employee and the normal way he treats or would treat other former employees in similar circumstances.
46. I add, as a footnote, that the question whether the section 6 duty imposed by the Disability Discrimination Act continues after the termination of the contract of employment is a separate question which does not call for decision on these appeals. I prefer to leave that question open.
47. I would therefore allow the appeal concerning the four disability discrimination cases. The Employment Tribunal has jurisdiction to consider each of these four victimisation claims.
48. I would also allow Ms Rhys-Harper's appeal in the sex discrimination case. Whether Ms Rhys-Harper's claim has any reasonable prospect of success is not a relevant consideration on the issue of jurisdiction which alone is the issue under consideration by the House. I should add, in the context of this claim under the Sex Discrimination Act, that I have reached the conclusion expressed above on the proper interpretation of all three Acts without regard to the impact of the Equal Treatment Directive or the decision of the European Court in Coote v Granada Hospitality Ltd (No 2)  ICR 942. Having regard to the conclusion I have reached, it is not necessary to consider the issues arising out of the Equal Treatment Directive.
49. In the racial discrimination case the London Borough of Lambeth has another string to its bow in seeking to resist Mr D'Souza's claim on jurisdictional grounds. It will be recalled that the basis of Mr D'Souza's claim is that the council discriminated against him by refusing to reinstate him as ordered by the employment tribunal. This raises the question whether such a refusal is conduct falling within section 4 of the Race Relations Act.
50. I can deal with this issue quite shortly. The effect of the relevant legislation can be summarised as follows. An order for reinstatement made by an employment tribunal is an order that the employer shall treat the employee in all respects as if he had not been dismissed. It is one of the orders an employment tribunal may make, in the exercise of its discretion, if it upholds an employee's complaint that he was unfairly dismissed. If an employer fails to reinstate an employee as ordered the tribunal is required to make an award of compensation for wrongful dismissal, with an additional award where the employer fails to satisfy the tribunal that it was not practicable to comply with the order: see sections 68, 69 and 71 of the Employment Protection (Consolidation) Act 1978, now sections 112, 113, 114 and 117 of the Employment Rights Act 1996.
51. In my view the benefit acquired by an employee from a reinstatement order cannot be regarded as a benefit within the meaning of section 4(2) of the Race Relations Act. It does not arise from the employment relationship. It derives from an order of the tribunal, made in the exercise of its discretion, after the employee has been unfairly dismissed. Such an order is a discretionary statutory remedy for unfair dismissal, attracting its own sanctions in the event of non-compliance. Nor, for the like reason, can the employer's failure to comply with the order be regarded as a detriment within section 4(2).
52. Nor does the case fall within section 4(1). Lambeth's conduct is not readily characterised as 'deliberately omitting to offer' Mr D'Souza employment within the meaning of section 4(1)(c). The nature of Lambeth's act was different. Lambeth was not in the normal position of a prospective employer. What Lambeth did was to fail to comply with a tribunal order which required the council to restore an employee to the employment from which he had been dismissed. That characterisation, coupled with the feature that the statute itself provides remedies for non-compliance with a reinstatement order, points strongly away from this circumstance being within section 4(1)(c) of the Race Relations Act. I would so hold.
53. Since, then, the discriminatory conduct alleged by Mr D'Souza does not fall within the ambit of section 4 of the Race Relations Act, the employment tribunal has no jurisdiction to entertain his complaint. For this reason I would dismiss Mr D'Souza's appeal.
LORD HOPE OF CRAIGHEAD
54. These three appeals raise an important point about the present state of the law which prohibits discrimination in the field of employment. Common to all three is an issue of statutory construction. In three separate enactments Parliament has made it unlawful for employers to discriminate on the grounds of sex, race and disability. It is not in doubt that statutory protection against discrimination and victimisation has been given to prospective and existing employees. The area of doubt to which these appeals have been directed relates to the position of ex-employees. The question is whether the statutory protection extends to persons who are no longer employed by the employer and, if so, in what circumstances.
55. There are two other questions each of which affects one appeal only which also need to be answered. In order to set the scene I must first set out the facts which have provided the background to your Lordships' examination of all these issues.
Rhys-Harper v Relaxion Group plc
56. The appellant, Christine Lillian Rhys-Harper, was employed by the respondent in November 1997 as a lifeguard and general assistant at the Helston Sports Centre. On 3 October 1998 an incident occurred there as a result of which a complaint was made to her employers that the appellant had been rude to customers. She was suspended from her duties, and on 12 October 1998 the manager of the Centre, Mr Osborn, conducted a disciplinary hearing which resulted in a decision that she should be dismissed on the ground of misconduct. Her dismissal was confirmed by Mr Osborn by a letter dated 15 October 1998, in which he told her that she would be receiving one week's pay in lieu of notice. She exercised her right of appeal under the respondent's disciplinary procedure.
57. The appeal hearing was conducted by the respondent's general manager, Mr Adamson. It took place on 9 November 1998. In the course of the hearing the appellant alleged that throughout her employment she had been regularly subjected to sexual harassment by Mr Osborn. Following the appeal hearing the appellant received two letters from Mr Adamson. In the first, which was undated, he told her that, having investigated the events, the company had found that there were sufficient grounds to dismiss her and that the decision to do so was to stand. In the second, which was dated 30 November 1998, he told her that the company had carried out a full and thorough investigation into her allegation of sexual harassment against Mr Osborn at the appeal hearing and that the company's finding was that there was insufficient evidence to establish a case against him.
58. On 18 February 1999 the appellant presented an application to the Employment Tribunal for unfair dismissal and sex discrimination. In her claim of sex discrimination she complained of sexual harassment and that the allegation relating to this matter which she had made at the appeal hearing had not been properly investigated. The tribunal referred the matter to a preliminary hearing to determine whether these claims had been lodged within the prescribed three months time limit. A majority of the tribunal, the Chairman dissenting, held that she had been dismissed on 30 November 1998, that the decision following the investigation into the allegation of sexual harassment could amount to continuing discrimination and that the claims of unfair dismissal and sex discrimination had been brought in time.
59. The respondent appealed to the Employment Appeal Tribunal, which held that the appellant's employment terminated on 22 October 1998 at the end of her period of one week's notice and that her claim for unfair dismissal was out of time. It also held that it had no jurisdiction to consider her allegation of sex discrimination in regard to the alleged failure by the respondent to carry out a proper investigation of her allegation of sexual harassment as the discriminatory conduct was alleged to have occurred after her employment had ended. The appellant appealed on the question of jurisdiction only, but her appeal on this point was dismissed by the Court of Appeal (Pill, Mantell and Buxton LJJ):  EWCA Civ 634;  ICR 1176.
60. The relevant provisions of the Sex Discrimination Act 1975 (section 1 of which as originally enacted has been substituted by regulation 3 of the Sex Discrimination (Indirect Discrimination and Burden of Proof) Regulations 2001, (SI 2001/2660) are as follows:
(2) Donald D'Souza v London Borough of Lambeth
61. The appellant, Donald D'Souza, was employed by the respondents until his dismissal in January 1990. His complaint is of racial discrimination and victimisation under section 4(2), or alternatively under section 4(1), of the Race Relations Act 1996.
62. On 11 April 1990, following his dismissal, the appellant commenced proceedings against the respondents in which he alleged unfair dismissal, race discrimination and victimisation. On 16 November 1992 the Employment Tribunal held that he had been unfairly dismissed within the meaning of section 57 of the Employment Protection (Consolidation) Act 1978 and that he had been unlawfully discriminated against on racial grounds and victimised within the meaning of the Race Relations Act 1976. The tribunal ordered the respondents to reinstate him by 16 January 1993. On 25 March 1993 the respondents informed the appellant that they were not willing to do so. The appellant made a further application for reinstatement on 31 July 1995, in response to which the respondent claimed that the relationship between them had broken down and that the post which he had previously occupied was no longer available. On 14 August 1995 the tribunal determined that it had not been reasonably practicable for the respondents to reinstate him, and it declined to make an award of compensation for the failure to reinstate under section 71(2)(b) of the 1978 Act. But on 18 October 1995 the tribunal made an award of compensation for the unfair dismissal, having regard to the fact that he was not reinstated.
63. In the meantime on 1 July 1995 the appellant commenced separate proceedings in which he claimed that the original decision not to reinstate him was caused by discrimination and victimisation. It is these proceedings with which this appeal is concerned.
64. On 14 March 1996 the tribunal determined that it had no jurisdiction to hear these complaints, as a person who was seeking to be restored to his former employment was not within the categories of persons who are protected against racial discrimination and victimisation under the Race Relations Act 1976. That decision was affirmed by the Employment Appeal Tribunal, and an appeal against its decision was dismissed by the Court of Appeal (Schiemann and Robert Walker LJJ and Lloyd J) on 25 May 2001:  EWCA Civ 794.
65. The relevant provisions of the Race Relations Act 1976 are as follows:
(3) Nicholas Kirker v British Sugar plc and Others