Judgments - Relaxion Group plc (Respondents) v. Rhys-Harper (FC) (Appellant), D'Souza (Appellant) v. London Borough of Lambeth (Respondents), Jones (Appellant) v. 3M Healthcare Limited (Respondents) and three other actions

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    171. Relaxion's appeal to the Employment Appeal Tribunal succeeded: [2000] IRLR 810. The EAT held, correctly as is now agreed, that the appellant's employment had terminated on 22 October 1998 when the one week's notice had expired. That being so, her application to the employment tribunal, in so far as it related to unfair dismissal or to sexual harassment preceding her dismissal, was out of time. If her sexual discrimination claim was to be viable then, unless she were given an extension of time, she would need to rely on an act of discrimination occurring after 19 November 1998, ie. after the termination of her employment on 22 October 1998.

    172. Accordingly, both in the EAT and in the Court of Appeal the appellant's claim was presented as including a complaint about an act of discrimination consisting of failure by Mr Adamson to investigate properly her complaint of sexual harassment. The EAT posed the question whether she had "a free-standing claim …. in relation to matters after 19 November 1998 even though she had ceased to be an employee" (para 4). In the Court of Appeal Pill LJ described her complaint as a "complaint about sexual harassment"— which is what it had originally been— but Buxton LJ described it as "solely a failure …. properly to investigate her complaint"— which is what it had had to become.

    173. The EAT held that since the alleged discriminatory conduct had taken place after the appellant's employment had come to an end, her complaint could not be brought within the 1975 Act. Her appeal on this point was dismissed by the Court of Appeal. The point is now before your Lordships.

    174. In summary, the alleged discriminatory conduct was committed by Relaxion, through Mr Adamson, after the appellant's employment had come to an end. The conduct in question was Mr Adamson's alleged failure to deal properly with the sexual harassment complaint made to him as part of the appellant's case that her dismissal by Mr Osborn ought not to be allowed to stand. In failing to deal properly with the complaint Mr Adamson, it is said, discriminated against her.

D'Souza v Lambeth BC

    175. In this case the alleged discrimination consisted of the Council's failure to re-instate the appellant in the job from which he had been dismissed. He was dismissed in January 1990. Following his dismissal he made an application to the Employment Tribunal complaining of unfair dismissal, race discrimination and victimization. His application was successful on all three grounds and on 16 November 1992 the Tribunal made an order that the Council re-instate him by 16 January 1993. The Council did not re-instate him. In July 1995 the appellant instituted a fresh application against the Council complaining of racial discrimination and victimization in respect of the Council's failure to re-instate him. The Council contended that the post the appellant had previously occupied no longer existed and that it was not practicable for them to re-instate him. The Tribunal accepted these contentions and, by a Decision of 18 October 1995, made an award of compensation in the appellant's favour in respect of his original complaint of unfair dismissal, having regard to the fact that he had not been re-instated. In effect this Decision replaced the original order for re-instatement with an award of compensation.

    176. On 14 March 1996 the Tribunal held it had no jurisdiction under the 1976 Act to hear the appellant's complaint of race discrimination in respect of the Council's refusal to re-instate him because the discriminatory conduct in question took place at a time when the appellant was no longer an employee of the Council. The EAT and the Court of Appeal agreed. The point is now before your Lordships.

    177. In the D'Souza case the important context in which the point arises is not simply that the discriminatory conduct complained of was post-employment but is also that the complaint relates to the statutory remedies for unlawful discrimination. It was the Employment Protection (Consolidation) Act 1978, now replaced by the Employment Rights Act 1996, that provided re-instatement as a possible remedy (see s. 113 of the 1996 Act; it was the same Act that enabled the employer to seek a determination that re-instatement was not reasonably practicable (see s.116 (5) and (6) and s.117 (7) of the 1996 Act); it was the same Act which enabled an award of compensation to be made if an order for re-instatement was not complied with (see s.117 (1) and (2) of the 1996 Act).

The Disability Discrimination appeals

    178. There are four cases, in each of which the appellant suffers from a disability and alleges that he has suffered discrimination from an ex-employer on account of the disability. In each, a claim was made under the Disability Discrimination Act 1995. Kirker v British Sugar plc concerns references. The appellant was dismissed by British Sugar in March 1997 and successfully claimed that his dismissal involved discrimination on account of his disability. In August 1999 he applied for a position with another company and named British Sugar as a previous employer who could give a reference about him. British Sugar were asked by the prospective employer to supply the reference. They say they did so, but that is in dispute. The appellant's job application failed and he commenced proceedings both against the prospective employer and against British Sugar. The claim against British Sugar alleges discrimination and victimization in failing to supply the reference. The question arises whether, even if the appellant's claim is factually correct, the discrimination is covered by the 1995 Act. He was an ex-employee seeking a reference from an ex-employer.

    179. In Jones v 3M Healthcare Ltd the appellant was dismissed and brought unfair dismissal and disability discrimination proceedings against his ex-employers. The proceedings were unsuccessful. The appellant then asked his ex-employers to return to him some business cards which he had left in his erstwhile office and, on their failure to do so, successfully sued in the County Court for the return of the cards. He then commenced proceedings under the 1995 Act alleging that his ex-employers' failure to return his cards was because he had instituted the discrimination proceedings and was accordingly victimization. But at the time of the allegedly victimizing conduct, the appellant was no longer an employee. Is the discrimination covered by the 1995 Act?


    Angel v New Possibilities NHS Trust is another reference case. The appellant was dismissed from her employment with the NHS Trust in July 1998. She claimed that she had been dismissed on account of her disability. Her claim was successful. She sought new employment. The NHS Trust provided a reference about her to the proposed new employers. But she was not offered the job. She then claimed that the NHS Trust had victimized her by giving an adverse reference about her.

    181. Finally, there is Bond v Hackney Citizens' Advice Bureau. The appellant had been employed by the CAB but in 1994 had been made redundant. In November 1999 she made an application to an employment tribunal alleging that she had been discriminated against by the CAB on account of her disability. And in June 2000 she made a further application alleging that the CAB had victimized her by declining to give a reference about her and also by the manner in which they had responded to enquiries made about her in connection with her mortgage re-payments. The conduct complained of took place after her employment by the CAB had come to an end.

    182. In each of these appeals the Employment Tribunal took the view that the complaints were not covered by the 1995 Act for the reason that the discriminatory conduct complained of had taken place after the employment had come to an end. The EAT and the Court of Appeal agreed. The point is now before your Lordships.

The scope of the anti-discrimination legislation

    183. It is clear that each of the anti-discrimination statutes, that is to say, the Sex Discrimination Act 1975, the Race Relations Act 1976 and the Disability Discrimination Act 1995, covers discrimination against applicants for jobs and discrimination against current employees. The issue is whether or to what extent the Acts cover discrimination against ex-employees. There are three particular types of case in which alleged discrimination against ex-employees has led to litigation and to consideration being given to the issue by the Courts. They are, first, cases in which the alleged discrimination has taken place in the course of domestic appeal procedures; second, cases in which an ex-employee has sought a reference from his or her ex-employer; and, third, cases in which some benefit has been extended by the ex-employer to some but not all ex-employees. There may, of course, be cases which do not fall into any of these categories. Jones v 3M Healthcare and the ex-employer's retention of his business cards is one such case.

    184. The issue is essentially one of statutory construction. The language used in each of the three Acts suggests, if read literally, that ex-employees are not protected. The 1975 Act refers to "a woman employed by …." the discriminator (s.6(2)). The 1976 Act refers to "a person employed by …." the discriminator (s.4(2)). The 1995 Act refers to "a disabled person whom [the discriminator] employs …." (s.4(2)). This language is indicative of a present relationship rather than a past one. My noble and learned friend Lord Hope of Craighead has, in paragraphs 44 to 48 of his opinion, referred to a number of textual provisions in the 1975 and 1976 Acts that reinforce the indication of a present relationship. And, as he points out (paras 49 and 50), the indication of a present relationship is further reinforced by the language used in the 1995 Act.

    185. The conclusion that ex-employees are not protected under these three Acts is consistent with domestic authority. In Nagarajan v Agnew ICR 520 Knox J held that there had to be a "subsisting employment relationship" for a claim under s.4(2) of the 1976 Act. The Court of Appeal in Post Office v Adekeye [1947] ICR 110 came to the same conclusion on the point. Peter Gibson LJ said, at p 118, 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'."

    186. This conclusion has not, however, met with uniform satisfaction. In Adekeye itself Peter Gibson LJ and Pill LJ said that it was unsatisfactory that the 1976 Act did not give a remedy for discrimination in the handling of an appeal against dismissal by an ex-employee. Morison J in the EAT has twice expressed dissatisfaction with Adekye (see Cooke v Granada (No. 2) [1999] ICR 942, 949-950 and D'Souza v Lambeth BC, unreported).

    187. It has been urged upon your Lordships to adopt a purposive approach to construction of the relevant language in the three Acts. It must surely, it is said, have been the intention of the legislature to protect an ex-employee from discrimination, and a fortiori from victimization for having previously complained of discrimination, where the discriminatory acts complained of consist of the unfair handling of appeals against dismissal. In these cases the appellant will, if the appeal succeeds, be re-instated as an employee as though he or she had never been dismissed. How can Parliament have intended that an employer, in reaching a decision as to whether an employee's dismissal should stand or should be set aside, should be free from the restraints on discrimination imposed by the Act? It seems to me that once the question is asked there can be only one answer. Of course Parliament must have intended the Acts to apply to such cases.

    188. On the other hand, where references are concerned the answer to whether Parliament must have intended the Acts to apply seems to me by no means clear. A request for a reference is, in part, a request for an opinion about the individual in question and, in part, a request for a statement of known events concerning that individual. An employer has no general contractual obligation to give a reference about an employee or an ex-employee but, as Lord Slynn of Hadley said in Spring v Guardian Assurance Plc [1995] 2 AC 295, 335:

    "…. in many cases an employee will stand no chance of getting another job, let alone a better job, unless he is given a reference. There is at least a moral obligation on the employer to give it."

Lord Woolf went further and expressed the view, at p 354, that in respect of some types of employment

    "it is necessary to imply a term into the contract that the employer would, during the continuance of the engagement or within a reasonable time thereafter, provide a reference at the request of a prospective employer which was based on facts revealed after making … reasonably careful enquiries …."

And Lord Goff of Chieveley commented, at p 319

    "The provision of …. references is a service regularly provided by employers to their employees; indeed references are part of the currency of the modern employment market."

    189. Their Lordships held in Spring v Guardian Assurance Plc that an employer, or ex-employer, would owe a duty not only to the prospective new employer but also to the subject of the reference to take reasonable care that the reference was fair and accurate.

    190. Whether or not there is an implied contractual obligation on an employer, or ex-employer, to give a reference, as there may be in some cases, most employers would, I am sure, usually give a reference if asked to do so. But some might be reluctant to do so, particularly if a long period had elapsed since the object of the reference had been an employee. If the anti-discrimination Acts are held to extend generally to ex-employees as well as current employees, any refusal or failure to supply a reference when asked to do so, no matter what period of years might have elapsed, might attract a discrimination complaint.

    191. Employers would be in a particularly vulnerable position where the possibility of a victimization complaint were present. Suppose an employee has made one, or more than one, unsuccessful discrimination complaints during the currency of his employment with a particular employer. He then leaves his employment and later asks for a reference in connection with an application for a job with some other employer. Must the first employer inform the prospective employer of the history of discrimination complaints made by the ex-employee? If the first employer refrains from doing so, will he be in breach of his duty to the prospective employer? If he does inform the prospective employer of the fact that the discrimination complaints were made and of their outcome, would that be victimization? Perhaps not, but to include in the reference the details of the unsuccessful discrimination complaints would surely be damaging to the ex-employee's job prospects. Could it not be represented as constituting less favourable treatment than would have been accorded to an ex-employee who had not made such complaints? Similar problems might, of course, arise in relation to requests for references made by current employees.

    192. The problems about references are demonstrated by some of the disability discrimination cases now before the House. In Kirker complaint is made of a failure by British Sugar to provide a reference. Was British Sugar under an obligation to provide a reference? Presumably not. It may be that a reference was in fact provided. But the appellant did not succeed in getting the job applied for. Was that because the reference was unfavourable? If it was unfavourable was that because the appellant had successfully claimed to have been dismissed on account of his disability?


    Angel v New Possibilities NHS Trust raises similar questions. Victimization by the supply of an unfavourable reference is the kernel of the complaint. And in Bond v Hackney CAB, too, victimization by an ex-employer in failing to supply a reference is the kernel of the complaint.

    194. It is one thing to allow the Acts to apply to references requested about current employees during the currency of the employment. It is quite another thing to allow them to apply without limit of time to all ex-employees. It is clear enough that Parliament did not have these problems in mind. Otherwise some provision would surely have been included in the Acts clarifying the position. But that is not by itself a reason why the Acts, if their language allows it, should not be applied to these cases. The literal language of a statute ought not, however, to be extended so as to cover matters that Parliament did not have in mind unless it is clear from the statute properly construed that Parliament would have intended the extension.

    195. The same problems are associated with post employment benefits. If ex-employees are led to expect post-employment benefits, such as membership of sports clubs, concessionary travel benefits or the like, it is easy to conclude that, even if their expectation is not strictly contractual, their deprivation of these benefits in circumstances involving discrimination on sex, race or disability grounds should be covered by the relevant Act. If, however, no such expectation has been engendered and an employer decides to offer some extra-contractual benefit to employees and to extend the benefit to some but not all ex-employees, can the excluded ex-employees make a discrimination complaint? A person can decide on which strangers he will bestow his generosity and from whom he will withhold it. Can he not exercise the same freedom to discriminate in relation to those who were in the past his employees but have become strangers? Why should the anti-discrimination Acts apply? The answer to these questions is not, in my opinion, apparent from the Acts themselves.

    196. So how is the line to be drawn. How is the principle to be formulated that would enable ex-employers and ex-employees to judge whether the imposition of a particular detriment, alleged to be discriminatory, was or was not covered by the Act? One answer would be to construe the Acts simply as covering all ex-employees. The participle "employed" in the 1975 and 1976 Acts would be read as meaning "has been or is employed", and the word "employs" in the 1995 Act would be read as meaning "employs or has employed". An alternative answer would be to confine the relevant words to their strict literal meaning and exclude ex-employees from protection under the Acts in all circumstances. My Lords I would, for my part, reject both these extremes. I would reject the first because it requires a purposive construction that can only be justified by attributing to Parliament an evident intention that, to my mind, is not in the least evident. I would reject the second because it introduces an arbitrary rigidity into the implementation of the Act that is unrealistic and cannot have been intended.

    197. In my opinion, the answer to the conundrum can be found by concentrating on the relationship between the employer and employee that is brought into existence when the latter enters the service of the former. The relationship is, of course, based on contract, express or implied, but does not necessarily come to an end, ipso facto, when the employment comes to an end. The internal appeal procedures that most employers, and all good ones, institute are a good example. Employees are entitled to avail themselves of these procedures. An employee who is dismissed and challenges the dismissal does not because he has been dismissed lose his right to appeal. The relationship between employer and employee, or ex-employee as he may by reason of his dismissal have become, is still in existence. The employee's, or ex-employee's entitlement is not simply an entitlement to lodge an appeal. He or she is entitled also to a fair hearing that is not tainted by discrimination. An obligation to provide such a hearing lies on the employer, or ex-employer. The relationship that is brought into existence when an employee enters an employer's service is not, in my opinion, wholly terminated so long as the internal appeal procedure is on foot. And, in my opinion, the reference to a woman "employed" in the 1975 Act, to a person "employed" in the 1976 Act and to a person whom the alleged discriminator "employs" in the 1995 Act can and should be given a purposive construction so as to cover dismissed employees during the currency of an internal appeal process.

    198. If the opinion I have expressed in the preceding paragraphs is right, Adekeye was wrongly decided. The case was one in which the complainant was dismissed by the Post Office but utilized the Post Office's internal appeal procedures to appeal against the dismissal. Her appeal was dismissed. She then instituted proceedings under the 1976 Act contending that the failure of her appeal was on account of racial discrimination. The EAT held that her complaint was not justiciable because at the time her appeal against dismissal was dealt with she was no longer an employee of the Post Office. The Court of Appeal agreed.

    199. It is of interest that an argument to somewhat of the same effect as that which I have attempted in paragraph 32 was addressed to the Court of Appeal in the Adekeye case [1997] ICR 110. The argument is recorded by Peter Gibson LJ at p 118.

    "[counsel] argued that the internal appeal is an integral part of the dismissal process and that until the appeal was concluded adversely to the employee, that process continued; the rejection of the applicant's appeal was therefore to be treated as her dismissal at a time she was employed."

Peter Gibson LJ characterised this as "an impossible argument". He said that

    ". . . the appeal procedures [do] not turn what was worded as an unconditional dismissal into a conditional one. Further, to argue that the dismissal did not take effect until the conclusion of the appeal is contrary to the decision of this court in J Sainsbury Ltd v Savage [1981] ICR 1)."

I respectfully agree with Peter Gibson LJ's cited remarks about the unconditional nature of a dismissal and its immediate effect in terminating the employment but the thought behind counsel's argument was, in my opinion, valid. The issue was whether the relationship between employer and employee, or ex-employee, during the currency of the appeal procedures was a relationship to which section 4(2) of the 1976 Act applied. It does not follow that because the dismissal was immediate and unconditional the Act could not apply to the relationship that would necessarily continue until the conclusion of the appeal procedures. In my opinion, for the reasons given the Act would continue to apply.

    200. Where references or other post-employment benefits are concerned the question whether the anti-discrimination Acts apply should, in my opinion, similarly depend on whether the relationship between employer and employee brought into existence when the employee entered the employer's service is still in existence. For my part I find it difficult to construct circumstances, other than those arising out of internal appeal procedures, where the relationship would still continue notwithstanding the dismissal, or departure for other reasons, of the employee. Lord Woolf in Spring v Guardian Assurance Plc [1995] 2 AC 295 suggested that employees in certain types of employment might have an implied contractual right to a reference, whether before or after their employment had come to an end. If there were such a case, the continuing responsibility of the ex-employer towards the ex-employee in regard to references might constitute a continuing relationship sufficient to justify the application of the anti-discrimination Acts. Another possible scenario is that of an employee who has been dismissed but is not allowed to return to his office to remove his belongings. Perhaps Jones v 3M Healthcare Ltd is such a case. In my opinion every employee who is dismissed is entitled to expect to be given a reasonable opportunity, under supervision if necessary, to remove his or her belongings from the premises where he or she was employed. The entitlement might be founded on implied contract or merely reasonable expectation but in either case I would regard the relationship between employer and employee as continuing for a reasonable period for that purpose. A discriminatory refusal to allow the ex-employee to remove his or her belongings would not, in my opinion, fall outside the Act.

    201. Special problems arise where the discrimination allegation is, or includes, an allegation of victimization. Victimization (s.4 of the 1975 Act, s.2 of the 1976 Act, and s.55 of the 1995 Act) is not per se unlawful. It is a form of discrimination that becomes unlawful if it takes place in circumstances in which the Act declares it to be unlawful eg. in relation to an employed person by subjecting the person to any detriment (s.6(2) of the 1975 Act). Victimization does not, therefore, extend the scope of protection against discrimination. It simply requires a different comparison to be made than that which has to be made for other forms of discrimination. If, for example, a reference is refused to an ex-employee as an act of victimization, the relevant Act is no more, and no less, applicable than it would have been if the discrimination had taken some other form. But where the victimization claim is brought under the 1975 Act, the position is complicated by the need to take account of European Community law.

    202. The Coote v Granada Hospitality Ltd [1999] ICR 100 litigation arose out of the following circumstances. Miss Coote, an employee of Granada, brought sex discrimination proceedings against them. The proceedings were settled and Miss Coote left Granada's employment. She then sought but failed to find employment elsewhere. She brought proceedings against Granada alleging that her failure was because, by way of reprisal for her previous sex discrimination claims, Granada had refused to supply a reference about her. The EAT sought a ruling from the European Court of Justice as to whether Council Directive 76/207/EEC required member states to introduce measures to enable victimized persons in Miss Coote's position to pursue a claim. The Court of Justice held that it did. It said that the Directive [1999] ICR 100, 112, para 19

    "requires member states to introduce into their national legal systems such measures as are necessary to ensure judicial protection for workers whose employer, after the end of the employment relationship, refuses to provide references as a reaction to proceedings brought to enforce compliance with the principle of equal treatment within the meaning of the Directive."

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