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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    219. In Rhys-Harper v Relaxion Group plc [2001] ICR 1176, 1184 - 1185, paras 23 - 26, Buxton LJ sharply criticised the decision of the EAT in Coote No 2 on the ground that it had not been open to them to do other than apply Post Office v Adekeye. Unlike Lord Scott of Foscote, I am very doubtful whether that criticism was justified, given the duty imposed on the EAT by article 249 (ex 189) of the EC Treaty and by the Marleasing line of authority. The Court of Justice had indeed restated that duty in Coote v Granada Hospitality Ltd [1999] ICR 100, 110 para 18. It is unnecessary, however, to go into the question on this occasion since any supposed constraint imposed by Post Office v Adekeye falls away once that decision is itself seen to have been incorrect. As I have noted already, in the context of section 6(2) the words "a woman employed by him" are ambiguous. In that situation I consider that in Coote No 2 Morison J was correct to hold that the EAT could, and therefore should, interpret them in such a way that section 6(2) would apply to a former employee who complained of victimisation. I note that - before Buxton LJ's comments - in Hall v Woolston Hall Leisure Ltd [2001] ICR 99, 116, para 59, Mance LJ, with whom Moore-Bick J agreed, cited the decision of the EAT in Coote No 2 as an illustration of the kind of approach to interpretation that the decision in Marleasing required of a court.

    220. As Lord Nicholls of Birkenhead has pointed out, the interpretation of the critical words in section 6(2) which is required by the ruling of the Court of Justice in Coote cannot be confined to cases of victimisation. The words of the subsection cannot mean one thing in victimisation cases and something else in other cases. What constitutes discrimination for purposes of section 6(2) is to be found in Part I of the Act, including both sections 1 and 4. So, if it is unlawful for an employer to "discriminate" against a former employee in terms of section 6(2) by victimising her under section 4(1), it must equally be unlawful for the employer to "discriminate" against a former employee in terms of section 6(2) by treating her less favourably on the ground of her sex under section 1(1). This confirms the conclusion, reached on an examination of the domestic law, that section 6(2) applies generally so as to make it unlawful to discriminate against former as well as current employees. The equivalent words in the other Acts fall to be interpreted in the same way.


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