(back to preceding text)

    66. This is a group of four appeals all of which raise the same question about the right to compensation for post-employment victimisation under section 4(2) of the Disability Discrimination Act 1995. In summary the facts in each of these cases is as follows:

    67. The appellant has very poor eyesight, which has made him eligible for full registration as a blind person. He was employed by British Sugar plc at Newark as a shift chemist but was dismissed for redundancy on 17 March 1997. He claimed that he had been discriminated as a disabled person. His claim was successful in the employment tribunal and upheld by the Employment Appeal Tribunal. On 13 August 1999 he applied for a position as a warehouse operative with Ambitions Personnel and named British Sugar as a referee. The manager at its Newark facility completed and returned the reference questionnaire which Ambitions Personnel had sent to him, but it was apparently not received and the appellant's application was rejected for lack of a reference. When this was brought to his attention the manager sent another copy of it to Ambitions Personnel as the position was still vacant, but the appellant was not appointed to fill the position. On 10 November 1999 he presented an application to the Employment Tribunal alleging disability discrimination against Ambitions Personnel. On 7 February 2000 he applied successfully for British Sugar plc to be joined as second respondent on the ground that it had victimised him by failing to respond to the application for a reference.

    68. The appellant suffers from severe clinical depression. He was dismissed by 3M Healthcare in November 1997. He brought proceedings against them for unfair dismissal and disability discrimination, but they were dismissed on 26 August 1998. On 12 September 1999 he asked 3M Healthcare to return his business cards which he had left in the office when he was dismissed. They refused to return the cards as they considered that they belonged to them. On 14 February 2000 the appellant obtained an order for their return from the county court. On 8 March 2000 he presented an application to the employment tribunal complaining that that his former employers had subjected him to discrimination and victimisation by refusing to return his business cards.

    69. The appellant was suffering from back and hip problems when she was dismissed from the post which she had held since July 1993 as a nurse by New Possibilities NHS Trust in July 1998. She claimed that she had been discriminated against on the ground of her disability, and her claim was successful. She then sought employment with Ling Trust. On 12 January 2000 New Possibilities NHS Trust provided a reference to Ling Trust, who decided not to offer her employment. On 16 March 2000 she presented an application to the employment tribunal in which she complained that she had been discriminated against and victimised by New Possibilities NHS Trust by supplying her with an adverse reference.

    70. The appellant suffers from back injuries which she sustained in a road accident. She was employed by Hackney Citizens' Advice Bureau until she was made redundant in October 1994. On 8 November 1999 she presented an application to the Employment Tribunal in which she claimed that she had been victimised because of her disability. On 6 June 2000 she presented a further application alleging that her former employer had victimised her by refusing to supply her with a reference and giving false information in reply to enquiries by two companies which had insured her property in respect of mortgage repayments.

    71. The Employment Tribunal held that it had no jurisdiction to consider the appellants' claims of victimisation under the 1995 Act, on the ground that section 4(2) of the Act applied to employees during the course of their employment only and did not extend to persons who were no longer employed on the date when the alleged act of victimisation took place. These decisions were upheld by the Employment Appeal Tribunal. The appellants appealed, but their appeals were dismissed by the Court of Appeal (Pill, Mummery and Latham LJJ): [2002] ICR 341.

    72. The relevant provisions of the Disability Discrimination Act 1995 are as follows:

"Part I Disability

1(1) Subject to the provisions of Schedule 1, a person has a disability for the purposes of this Act 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.

(2) In this Act 'disabled person' means a person who has a disability.

Part II Employment …

4(2) It is unlawful for an employer to discriminate against a disabled person whom he employs -

(a) in the terms of employment which he affords him;

(b) in the opportunities which he affords him for promotion, a transfer, training or receiving any other benefit;

(c) by refusing to afford him, or deliberately not affording him, any such opportunity; or

(d) by dismissing him, or subjecting him to any other detriment.

Part VI Supplemental

55(1) For the purposes of Part II or Part III, a person ('A') discriminates against another person ('B') if -

(a) he treats B less favourably than he treats or would treat other persons whose circumstances are the same as B's and

(b) he does so for a reason mentioned in subsection (2).

(2) The reasons are that -

(a) B has -

(i) brought proceedings against A or any other person under this Act; or

(iv)  alleged that A or any other person has (whether or not the allegation so states) contravened this Act; or

(b) A believes or suspects that B has done or intends to do any of those things."

    73. Section 62(1) of the Sex Discrimination Act 1975 provides that a contravention of the Act shall incur as such no sanction, whether civil or criminal, except to the extent (if any) expressly provided by that Act. Section 63(1) of that Act provides that a complaint by any person that another person has committed an act of discrimination against the complainant which is unlawful by virtue of Part II of the Act may be presented to an employment tribunal, and section 65 sets out the remedies that may be given by the tribunal if it finds that a complaint presented under section 63 is well founded. Provisions to the same effect are to be found in sections 53, 54 and 56 of the Race Relations Act 1976 and in section 8 of the Disability Discrimination Act 1995. The effect of these provisions is that complaints of discrimination on grounds of sex, race and disability in the employment field must be presented to an employment tribunal. The question of law which is common to all these cases is whether the employment tribunal has jurisdiction to consider a complaint of discrimination which relates to only acts which are alleged to have taken place after the complainant's employment has come to an end.

    74. The answer to this question depends on the meaning which is to be given in its context to the phrase "employed by him" in section 6(2) of the Sex Discrimination Act 1975 and section 4(2) of the Race Relations Act 1976 and to the phrase "whom he employs" in section 4(2) of the Disability Discrimination Act 1995. As Lord Bingham of Cornhill observed in Anyanwu v South Bank Student Union [2001] 1 WLR 638, 640, this is a trio of Acts which contain similar provisions, although they are directed to different forms of discrimination. It is plain that, when Parliament used the same phrase "employed by him" in section 4(2) of the Race Relations Act 1976 as it used in section 6(2) of the Sex Discrimination Act 1975, it must have intended that it should be given the same meaning in each of these two Acts. The wording of the equivalent phrase in section 4(2) of the Disability Discrimination Act 1995 is slightly different, and there are other differences in the layout and wording of that Act in comparison with the Acts which deal with discrimination on the grounds of sex and race. So it will be necessary to consider the meaning which is to be given to the phrase in the 1995 Act separately.

    75. At the end of the hearing of the appeal in Mrs Rhys-Harper's case a further issue was raised by Mr Reynold QC on her behalf. Her complaint had been presented hitherto as a complaint about discrimination after the employment relationship had ended. But in his closing speech Mr Reynold submitted that, as her allegation of sexual harassment was made in the course of her appeal against dismissal, her complaint had a direct bearing on the part played by Mr Adamson who investigated and rejected that complaint and was the decision-taker in her appeal against her dismissal. He accepted that the nexus between her complaint of sexual discrimination in his handling of that allegation and his decision in the appeal against dismissal had not been made clear previously. The point which he sought now to put in issue was that, on a correct analysis of the facts, this was a case of continuing discrimination by victimisation which could be related to the employer's act in dismissing her.

    76. In Mrs Rhys-Harper's case it will also be necessary to take account of the fact that the Sex Discrimination Act 1975 gave effect in domestic law to Council Directive 76/207/EEC ("the Equal Treatment Directive"). This is a feature which is absent from the other two cases, as the legislation which dealt with discrimination on grounds of race and disability had no equivalent base under the EC Treaty when it was enacted. Council Directive 2000/43/EEC ("the Race Directive") was adopted under article 13 of the EC Treaty by the United Kingdom and other member states in 2000, but it does not have to be implemented until 19 July 2003. The Community has not yet turned its attention to discrimination in the employment field on the ground of disability.

    77. A further question of law is raised by the case of D'Souza, as he has an alternative argument that the decision of his former employer not to reinstate him when ordered to do so by the Employment Tribunal was a breach of section 4(1) of the Race Relations Act 1976. The question is whether, when it refused to do so, his employer was "refusing or omitting to offer him" that employment within the meaning of section 4(1)(c) of that Act.

    78. It is a remarkable fact that, although discrimination on whatever grounds is widely regarded as morally unacceptable, the common law was unable to provide a sound basis for removing it from situations where those who were vulnerable to discrimination were at risk and ensuring that all people were treated equally. Experience has taught us that this is a matter which can only be dealt with by legislation, and that it requires careful regulation by Parliament. The Community has adopted the same approach in its promotion of the principle of equal treatment as part of its social action programme. The fact is that the principle of equal treatment is easy to state but difficult to apply in practice. In the result the legislation which is under scrutiny in these appeals is designed to be specific and particular rather than universal in its application, and it is still being developed incrementally. It must, of course, be construed purposively, as Waite LJ said in Jones v Tower Boot Co Ltd [1997] ICR 254, 261-262. But the scope to be given to the legislation is essentially a matter for Parliament. The question which lies at the heart of these appeals is what its intention was when it enacted the provisions in each of these three Acts which deal with discrimination by employers against applicants and employees.

    79. The Sex Discrimination Act 1975 was designed to give effect to the principles contained in the White Paper Equality for Women (Cmnd 5724) of September 1974. The White Paper stated that the government's ultimate aim was to harmonise the powers and provisions for sex and race discrimination so as to secure genuine equality of opportunity in both fields. It made unlawful discrimination across a wide range of activities in the employment and social fields on the ground of sex and marital status. It drew on experience of the workings of the Race Relations Act 1968 and the Equal Pay Act 1970. In the field of employment it prohibited discrimination in the offering of and other acts preparatory to entering into a contract of employment. It also extended its provisions against discrimination once the contract was entered into to non-contractual aspects of the employment relationship to ensure equality of treatment in the provision of benefits and the avoidance of detriment. The contractual aspects were dealt with by an amendment to section 1(1) of the Equal Pay Act 1970 which substituted for the equal pay clause which was deemed to be included in every contract of employment by that subsection a more broadly framed equality clause. No indication was given in the White Paper of an intention to extend the prohibition to non-contractual acts or omissions by employers once the employment relationship had come to an end, and there is no provision in the Act which expressly addresses this matter. Some indication of the common understanding of the scope of the Act when it was enacted is given by the comment in a general note by the annotator in Current Law Statutes that section 6 "provides the general prohibition of discrimination by an employer between prospective and existing employees." [my emphasis]

    80. The Sex Discrimination Act 1975 received the Royal Assent on 12 November 1995. Council Directive 76/207EEC "on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions" was published in the Official Journal on 14 February 1976. The preamble to the Directive referred to the Council's resolution of 21 January 1974 concerning a social action programme for the purpose of achieving equality between men and women as regards access to employment and vocational training and promotion "and as regards working conditions, including pay." It also referred to Council Directive 75/117/EEC on the approximation of the laws of member states relating to the application of the principle of equal pay for men and women and stated that Community action to achieve the principle of equal treatment for men and women in respect of access to employment and vocational training and promotion and "in respect of other working conditions" appeared to be necessary. No amendment to the Sex Discrimination Act 1975 to give effect to this Directive in domestic law was thought to be necessary.

    81. The Race Relations Act 1976 was the third enactment dealing with race relations. The first, in 1965, dealt with incitement to racial hatred and made discrimination on racial grounds unlawful in places of public resort. The second, in 1968, widened the prohibition of discrimination to other areas including employment, but it was soon appreciated that further legislation was needed. The 1976 Act too, like the Sex Discrimination Act 1975, was preceded in September 1975 by a White Paper: Racial Discrimination (Cmnd 6234). This White Paper gives no indication of an intention to extend the scope of the prohibition of discrimination to acts or omissions by employers after the employment relationship has come to an end. The language and structure of this Act was closely modelled on the Sex Discrimination Act 1975. Much of the wording of Part II in both Acts about discrimination in the employment field, including the sections which deal with discrimination against applicants and employees, is identical.

    82. Provision was made by both of these Acts for keeping the working of the legislation under review. Section 53 of the Sex Discrimination Act 1975 provided for the establishment of the Equal Opportunities Commission, among whose duties was to be to keep under review the working of that Act and the Equal Pay Act 1970 and, when they were so required by the Secretary of State or otherwise think it necessary, to draw up and submit to the Secretary of State proposals for amending them: section 53(1)(c). Section 43 of the Race Relations Act 1976 provided for the establishment of the Commission for Racial Equality with the same duty to keep the working of that Act under review: section 43(1)(c). This legislation has now been in force, and kept under review, for more than a quarter of a century. No amendments have been introduced with a view to making it clear that the prohibition in the employment field extends to acts or omissions by employers after the employment relationship has come to end.

    83. The question whether the legislation as originally enacted had that effect, or whether employment must continue to subsist for a person to be "a person employed by him" does not appear to have been raised until the point was argued for the first time before the Employment Appeal Tribunal in Nagarajan v Agnew [1995] ICR 520. In the meantime in De Souza v Automobile Association [1986] ICR 514, 522H May LJ felt able to say that the word "detriment" in section 4(2)(c) of the Race Relations Act 1976 referred to the circumstances in which the person "thereafter has to work." [my emphasis] In Garland v British Rail Engineering Ltd [1983] 2 AC 751 a female employee complained that she was being discriminated against by her employers who operated a scheme which gave concessionary travel facilities to employees and their families. This facility was available to employees after their retirement, but only male employees had the benefit of it after retirement for their families. An issue was raised as to the meaning to be given to the words "provision in relation to death or retirement" in section 6(4) of the Sex Discrimination Act 1975 in the light of article 119 of the EEC Treaty (now article 141 EC). It was held, following a reference to the European Court of Justice, that the scheme was not covered by the exception in section 6(4) because these words should not be construed so widely as to include a privilege which had existed during employment and was allowed by the employer to continue after retirement. The result was that the scheme was subject to the prohibition on discrimination imposed by section 6(2)(a) of the Sex Discrimination Act 1975. An important feature of that case, however, was that the employees were entitled to the benefit of the scheme both before and after their retirement. The issue whether section 6(2) was apt to cover things done or omitted to be done by the employer which could be attributed only to a period after the end of the employment relationship was not raised in that case.

    84. In Nagarajan v Agnew [1995] ICR 520 (reported also in [1994] IRLR 61), in which an ex-employee alleged that he had been victimised by a bad reference from his former manager, the Employment Appeal Tribunal held that the natural meaning of the phrase "a person employed by him" in section 4(2) of the Race Relations Act 1976 was that the employment must continue to subsist for the prohibition to apply. Knox J said at p 531 that the whole provision was couched in the present tense and that, if it had been intended to include benefits, facilities or services or detriments post employment, Parliament would certainly have made it explicit that that extended meaning was the correct one and it had not done so. In Post Office v Adekeye [1995] ICR 540 the Employment Appeal Tribunal held, for the same reasons, that the tribunal had not jurisdiction to hear a complaint about racial discrimination at an internal appeal hearing by a person who was pursing an appeal against her dismissal. But Smith J said at p 548E that it was unsatisfactory that the Act did not give a remedy to an ex-employee in such circumstances. The decision by the Employment Appeal Tribunal in that case was given on 15 February 1995.

    85. It was against this background that the Disability Discrimination Act 1995 was enacted. It received the Royal Assent on 8 November 1995. Once again the legislation was preceded by a White Paper, Ending discrimination against disabled people, January 1995 (Cm 2729). In paragraph 3.1 it was stated that ensuring full and fair access to employment opportunities was a key element in the government's policy of enabling disabled people to be fully active and independent members of society. In paragraph 3.4 it was stated that a new right of non-discrimination in employment was to apply "in all areas of employment, including recruitment, dismissal, training, career progression, terms of employment and general treatment at work." No indication was given in the White Paper that it was the intention to extend this right to ex-employees to give them a right of non-discrimination by their former employers after the employment relationship had come to an end. Much of the structure and language of Part II of the Act which deals with discrimination by employers follows closely the pattern which is to be found in Part II of the Sex Discrimination Act 1975 and the Race Relations Act 1976, although there are some important differences. In his general note to this Part of the Act the annotator in Current Law Statutes states that the right not to be discriminated against "covers employees and applicants for employment." In his note to section 55, which deals with victimisation, he refers to the report of the decision of the Employment Appeal Tribunal in Nagarajan v Agnew in [1994] IRLR 61 and states that by analogy with that case it seemed likely that the protection against victimisation would be limited to events occurring during the course of employment. This a reminder, if any reminder were needed, that attention had already been drawn to this problem prior to the enactment of the 1995 Act.

    86. Parts VI and VII of the Disability Discrimination Act 1995 contain a number of provisions which are designed to assist in the working out of the Act in practice. Section 50 provides for the establishment of the National Disability Council among whose duties was to advise the Secretary of State on matters relating to the operation of the Act or of provisions made under it: section 50(2)(c). Section 53 provides that the Secretary of State may issue codes of practice containing such practical guidance as he considers appropriate with a view to eliminating discrimination in the field of employment against disabled persons and person who have had a disability and encouraging good practice in relation to such persons. This provision was implemented by the issuing of the Disability Discrimination Act 1995 Code of Practice. Paragraph 2.8 answers the question "Who counts as an employee under the Act?" It states that "employee" means anyone whose contract is within the definition of employment in section 68 of the Act, which defines employment as a employment under a contract of service or of apprenticeship or a contract personally to do any work, "whether or not, for example, he works full-time." The guidance which the Code gives with regard to employment relates entirely to prospective and existing employees. There is no indication that the Secretary of State thought that the Act was designed also to deal with the position of ex-employees after the employment relationship had come to an end, and no guidance whatever is offered on this issue.

    87. The conclusion which I would draw from this history is that up to this point the issue as to whether the prohibition against discrimination should be, or had been, extended to ex-employees had not been specifically addressed either by the government or by the legislature. None of the advisory bodies established under these Acts have asked to intervene in these appeals. Nor was your Lordships' attention drawn to any published statements by any of them indicating their views, either one way or on the other, on the questions which the appeals have raised. The practical problems to which the competing interpretations of the relevant sections may give rise in the field of employment as a whole have not been explored.

    88. In an area which is as sensitive and as wide-ranging in its effects as this one, the absence of information of that kind this is a significant omission. It inhibits the use of the purposive approach in this case, as we have no clear guide to the scope which was intended to be given to the enactments other than the words which they themselves have used to describe it. The extent to which, if at all, the legislation was intended to apply after the ending of the employment relationship was, of course, a matter for the legislature. In this situation I believe that, subject to the guidance of the European Court of Justice as the scope to be given to the Sex Discrimination Act 1975 in the light of Council Directive 76/207/EEC, your Lordships must approach these questions by examining the language which Parliament used in order to discover what its intention was when the statutes were enacted. It is to this task that I now turn.

    89. The critical words in section 6(2) of the Sex Discrimination Act 1975 and section 4(2) of the Race Relations Act 1976 are "employed by him". In section 4(2) of the Disability Discrimination Act 1995 they are "whom he employs". The question is whether these words extend to cases where the employment relationship had come to an end at the time of the alleged act of discrimination.

    90. In Post Office v Adekeye [1997] ICR 110 this question reached the Court of Appeal for the first time. This was an appeal from the decision of the Employment Appeal Tribunal in Adekeye v Post Office [1995] ICR 540. The Court of Appeal held that, in the absence of any express extension of the term "employee" to include a person whose employment had ceased, the words "a person employed by him" in section 4(2) of the Race Relations Act 1975 when given their ordinary and natural meaning in their context excluded a person whose employment had ceased at the time of the act of discrimination. Peter Gibson LJ, with whose judgment Pill and Hirst LJJ agreed, said at p 118:

"I accept the submission of Mr Greening for the Post Office that, giving the words 'in the case of a person employed by him' their ordinary and natural meaning in their context, those words mean, and can only mean, 'in the case of a person who is employed by him.' I note that that person is referred to in the next line as 'that employee' which is again suggestive of a present and not a past employee. … Further, as Smith J pointed out in [1995] ICR 540, 544-545, the definition of 'employee' in section 153 of the Employment Protection (Consolidation) Act 1978 (which re-enacted the definition in section 167(1) of the Industrial Relations Act 1971) was expressly extended to include a person whose employment had ceased. It is significant that there is no equivalent extension in the Act of 1976. I therefore conclude that the appeal tribunal was right to hold that section 4(2) of the Race Relations Act 1976 protects only those whose employment continues at the time of the act of discrimination."