Ipsofactoj.com: International Cases [2004] Part 4 Case 3 [HL]


THE HOUSE OF LORDS

Coram

Rhys-Harper

- vs -

Relaxion Group Plc

LORD NICHOLLS OF BIRKENDHEAD

LORD HOPE OF CRAIGHEAD

LORD HOBHOUSE OF WOODBOROUGH

LORD SCOTT OF FOSCOTE

LORD RODGER OF EARLSFERRY

19 JUNE 2003


Judgment

Lord Nicholls of Birkenhead

My Lords,

  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 [1997] 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 [2001] EWCA Civ 634, [2001] 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 [2001] 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, [2002] ICR 341, 358:

    if there is any escape other than by legislative amendment, it lies only, it seems to us, in the House of Lords.

  18. The four claimants then appealed to the Court of Appeal. The court, comprising Pill, Mummery and Latham LJJ, dismissed the appeals: see [2002] EWCA Civ 304; [2002] 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:

    A person ("the discriminator") discriminates against another person ("the person victimised") in any circumstances relevant for the purposes of any provision of this Act if he treats the person victimised less favourably than in those circumstances he treats or would treat other persons, and does so by reason that the person victimised has-

    (a)

    brought proceedings against the discriminator or any other person under this Act or the Equal Pay Act 1970, or

    (b)

    given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Act or the Equal Pay Act 1970, or

    (c)

    otherwise done anything under or by reference to this Act or the Equal Pay Act 1970 in relation to the discriminator or any other person, or

    (d)

    alleged that the discriminator or any other person has committed an act which (whether or not the allegation so states) would amount to a contravention of this Act or give rise to a claim under the Equal Pay Act 1970,

    or by reason that the discriminator knows the person victimised intends to do any of those things, or suspects the person victimised has done, or intends to do, any of them.

    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:

    It is unlawful for a person, in relation to employment by him at an establishment in Great Britain, to discriminate against a woman -

    (a)

    in the arrangements he makes for the purpose of determining who should be offered that employment, or

    (b)

    in the terms on which he offers her that employment, or

    (c)

    by refusing or deliberately omitting to offer her that employment.

  23. Section 6(2) is the key section for present purposes. I have emphasised the crucial phrase:

    It is unlawful for a person, in the case of a woman employed by him at an establishment in Great Britain, to discriminate against her-

    (a)

    in the way he affords her access to opportunities for promotion, transfer or training, or to any other benefits, facilities or services, or by refusing or deliberately omitting to afford her access to them, or

    (b)

    by dismissing her, or subjecting her to any other detriment.

  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:

    It is unlawful for a person, in the case of a person employed by him at an establishment in Great Britain, to discriminate against that employee-

    (a)

    in the terms of employment which he affords him; or

    (b)

    in the way he affords him access to opportunities for promotion, transfer or training, or to any other benefits, facilities or services, or by refusing or deliberately omitting to afford him access to them; or

    (c)

    by dismissing him, or subjecting him to any other detriment.

  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:

    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.

    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.

    THE AUTHORITIES

  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 [1995] 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 [1995] 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 [1997] 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.

  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 [1999] ICR 100.

  33. The Employment Appeal Tribunal then resumed its hearing of Ms Coote's appeal: Coote v Granada Hospitality Ltd (No 2) [1999] 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 LEGISLATIONS

    '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-ŕ-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.

    THE APPEALS

  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) [1999] 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

    My Lords,

  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.

    THE FACTS

    (1) 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): [2001] EWCA Civ 634; [2001] 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:

    Part I

    Discrimination to which Act applies ....

    1.

    (1)

    In any circumstances relevant for the purposes of any provision of this Act, other than a provision to which subsection (2) applies, a person discriminates against a woman if -

    (a)

    on the ground of her sex he treats her less favourably than he treats or would treat a man, or

    ....

    Part II

    Discrimination in the Employment Field ....

    6.

    (1)

    It is unlawful for a person, in relation to employment by him at an establishment in Great Britain, to discriminate against a woman -

    (a)

    in the arrangements he makes for the purpose of determining who should be offered that employment; or

    (b)

    in the terms on which he offers her that employment; or

    (c)

    by refusing or deliberately omitting to offer her that employment.

    (2)

    It is unlawful for a person, in the case of a woman employed by him at an establishment in Great Britain, to discriminate against her -

    (a)

    in the way he affords her access to opportunities for promotion, transfer or training, or to any other benefits, facilities or services, or by refusing or deliberately omitting to afford her access to them, or

    (b)

    by dismissing her, or subjecting her to any other detriment.

    (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: [2001] EWCA Civ 794.

  65. The relevant provisions of the Race Relations Act 1976 are as follows:

    Part I

    Discrimination to which Act applies ....

    1.

    (1)

    A person discriminates against another in any circumstances relevant for the purposes of any provision of this Act if -

    (a)

    on racial grounds he treats that other less favourably than he treats or would treat other persons, or

    ....

    2.

    (1)

    A person ('the discriminator') discriminates against another person ('the person victimised') in any circumstances relevant for the purposes of any provision of this Act if he treats the person victimised less favourably than in those circumstances he treats or would treat other persons, and does so by reason that the person victimised has -

    (a)

    brought proceedings against the discriminator or any other person under this Act; or

    ....

    (d)

     

    alleged that the discriminator or any other person has committed an act which (whether or not the allegation so states) would amount to a contravention of this Act, ....

    Part II

    Discrimination in the Employment Field ....

    4.

    (1)

    It is unlawful for a person, in relation to employment by him at an establishment in Great Britain, to discriminate against another -

    (a)

    in the arrangements he makes for the purpose of determining who should be offered that employment; or

    (b)

    in the terms on which he offers him that employment; or

    (c)

    by refusing or deliberately omitting to offer him that employment.

    (2)

    It is unlawful for a person, in the case of a person employed by him at an establishment in Great Britain, to discriminate against that employee -

    (a)

    in the terms of employment which he affords him; or

    (b)

    in the way he affords him access to opportunities for promotion, transfer or training, or to any other benefits, facilities or services, or by refusing or deliberately omitting to afford him access to them, or

    (c)

    by dismissing him, or subjecting him to any other detriment.

    (3) Nicholas Kirker v British Sugar Plc and Others

  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:

    Nicholas Kirker

  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.

    Gerald Philip Jones

  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.

    Diana Angel

  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.

    Charmaine Bond

  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.

    THE PRINCIPAL ISSUE

  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 investigation 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.

    A BRIEF HISTORY OF THE LEGISLATION

  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 1971 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.

    THE LANGUAGE OF THE LEGISLATION

    (1) Introduction

  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.

  91. The Court of Appeal in each of the three cases which are now before your Lordships appears to have had no difficulty in following and applying the decision in Adekeye. In Rhys-Harper v Relaxion Group Plc [2001] ICR 1176, 1185, para 25, Buxton LJ said that he found entirely persuasive the conclusion of Peter Gibson LJ that, when one read the words in section 4(2) of the Race Relations Act 1976 which are the equivalent of section 6(2) of the Sex Discrimination Act 1975, it was inescapable that what was addressed was events occurring during the actual course of employment. After quoting the words of section 6(2)(a) he said in para 26:

    The concept of a person affording 'access' to benefits to a woman 'employed' by him only makes sense when directed to conduct taking place during the employment relationship. If what was addressed here was conduct towards former employees, not only would that be spelled out in terms, but also language a good deal different from that of providing access to facilities would be used.

    He said that he agreed with Peter Gibson LJ's conclusion that strong indications of post-contract activity within the events listed in that subsection, going beyond mere possibilities, would be needed in order to compel a reading of 'a person employed by him' in the unnatural sense of a person previously employed. In paragraph 4 of his judgment in D'Souza v London Borough of Lambeth [2001] EWCA Civ 794 Schiemann LJ said that the Court of Appeal at the time regarded the decision in Adekeye [1997] ICR 110 as unsatisfactory but inescapable in the light of the wording of section 4 of the Race Relations Act. He also said that it was fair to point out that, despite that expression of dissatisfaction, Parliament in passing the Race Relations (Amendment) Act 2000, had not seen fit to alter section 4 of the earlier Act in any relevant respect. In paragraph 23 of his judgment in Kirker v British Sugar Plc [2002] ICR 1124 Mummery LJ observed the result of his reading of section 4(2) of the Disability Discrimination Act 1995 was consistent with the decisions in Adekeye, Rhys-Harper and D'Souza. But, as he said in para 25, the wording of section 4(2) of the 1995 Act is different from that in the two other discrimination Acts, so it would have been possible for a different view to be taken as its meaning in their case without affecting the construction of the 1995 Act.

  92. In para 14 of his judgment in Kirker v British Sugar Plc Mummery LJ said that on their plain and ordinary meaning the words of section 4(2) of the 1995 Act expressly conferred protection from discrimination by an employer on only two classes of disabled person: first, job applicants, and, secondly, persons "whom he employs". He referred to the fact that the words "whom he employs" is couched in the present tense, which naturally referred to a contractual employment relationship existing at the date of the commission of any of the particular kinds of act referred to in the subsection all of which were plainly referable to events occurring in the course of an existing employment relationship. It was contended in that case that this result was unsatisfactory, arbitrary and contrary to the statutory purpose of the enactment. In paragraph 21 he responded to this argument in this way:

    In my judgment, the meaning of the language of section 4(2) is so plain that, as a matter of construction, the court would not be justified in departing from its natural meaning in order to avoid the predicted consequences. I would add that some surprising consequences might be thought to flow from the construction of section 4(2) proposed by the applicants. For example, a disabled employee, who was fairly dismissed for misconduct after a month of employment, would be entitled for the rest of his life to make claims of discrimination and victimisation against his former employer who would be potentially liable, even for subconscious acts of discrimination and victimisation (see Nagarajan v London Regional Transport [2000] 1AC 501) in respect of post-termination acts committed many years later, such as the provision or non-provision of a reference.

  93. In contrast to the position which has been adopted by the Court of Appeal, Morison J has made his disagreement with the decision in Adekeye clear on at least two occasions. In Coote v Granada Ltd (No 2) [1999] ICR 942, a case under the Sex Discrimination Act 1975 which was decided following a reference to the European Court of Justice, he said at p 949 that it seemed to the tribunal that the present tense would have been quite apt had the section been intended to apply to former employees since what is made unlawful is a present act of discrimination. He summed the position up at p 950:

    We have not been persuaded that it could be said that the Court of Appeal's decision was so mistaken (per incuriam) that it need not be followed. We quite see the force of the criticisms made of it. Indeed, we would go further and respectfully say that we disagree with it. But the doctrine of precedent requires us to follow it and, had it been applicable to this case, we would have done so.

    In D'Souza v London Borough of Lambeth (EAT, unreported, 27 June 2000) he said in para 6:

    It seems to us that we are bound by the decision of Adekeye which must be faithfully followed, although we do so without relish. We can see a strong argument for adopting a purposive approach to section 4 and make it elastic enough to cover acts of discrimination against former employers. The employment relationship, in the most general sense, outlives the contractual relationship: there are references, pension matters, sports clubs and other post employment events which links an ex employee with his former employer. It would be intolerable if an employer could blacken the former employee in the market place because he had successfully sued his former employer in a tribunal. If people are frightened by what happens to them if they make a complaint, the evil of discrimination will be more likely to live on. Not all perks and privileges for retired staff could be considered contractual and it is difficult to understand why, if they are dealt with in a discriminatory way, they should not be covered by the Act, since there may be no other available remedy.

  94. Against this background which indicates that there are powerful views on either side of the argument, I now turn to the language of the statutes themselves. I shall take them in their historical order, although it will not be necessary to say much about the Race Relations Act 1976 as the wording which it uses is so close to that of the Sex Discrimination Act 1975.

    (2) The words themselves

  95. What is 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 Discrimination Act 1995? I propose to examine this question by stages. I shall start with the wording of section 6(2) of the 1975 Act itself. Then I shall look at other provisions in order to determine how the critical phrase falls to be read in its context. Then I shall look at section 4(2) of the 1976 Act in its context. I shall deal finally with the slightly different wording of section 4(2) of the 1995 Act in its context.

    (a) Sex Discrimination Act 1975, s 6(2): "employed by him"

  96. The word "employed" can serve either as an adjective or as a participle. If it is to serve as an adjective it will be attached to a noun. Here there is no noun, so at least one can say that it is being used in the subsection as a participle. But if it is to serve as a participle, the question whether it is being used as a past participle or as a present participle will depend on the tense of the verb with which it is associated. Here there is no verb. That is not to say that a verb cannot be read in to the subsection. But this requires an understanding of the intention of Parliament, and the participle itself gives no indication as to the tense. So the phrase "employed by him" without more is ambiguous.

  97. As soon as one beings to examine the context, however, the ambiguity beings to recede. The phrase "in the case of a woman employed by him at an establishment in Great Britain", taken together with the words "in the way he affords her access to opportunities for promotion, transfer or training" the first part of paragraph (a) indicates beyond doubt that existing employees fall within the phrase "employed by him". But it also suggests that it is only existing employees who do so. This impression is reinforced by the words "by dismissing her" in paragraph (b). If Parliament had intended it to deal with ex-employees as well, one would have expected it to have said so. The reference to "any other benefits, facilities or services" in paragraph (a) and "subjecting her to any other detriment" in paragraph (b) are not so plainly related to things done to existing employees. They could include acts of discrimination after the employment has come to an end, and it is by no means impossible for the subsection as whole to be read in this way. But it is not obvious that this is what Parliament intended. Elsewhere in section 6, subsection (7) states that subsection (2) does not apply to benefits, facilities or services of any description if the employer "is" concerned with the provision of these things to the public, or to a section of the public comprising the woman in question. It then sets out three exceptions to this provision -

    1. the provision differs in a material respect from the provision of these things by the employer to "his employees",

    2. the provision of these things to the woman "is regulated" by her contract of employment and

    3. they relate to training.

    This provision appears to have been designed on the assumption that the situation with which subsection (2) is dealing is that which applies where the contract of employment is still on foot, not after it has come to an end.

  98. Two other provisions in first group of sections in Part II of the 1975 Act which deal with employers indicate that Parliament did not address itself to the position of their ex-employees. Section 9 makes it unlawful for a person to discriminate against a woman who "is a contract worker". Among the things he may not do is discriminate against her in the provision of "any benefits, facilities or services" or by subjecting her to "any other detriment" - phrases that are repeated from section 6(2). An exception is made for benefits, facilities or services if the person "is" concerned with the provision of these things to the public, as in section 6(7). Section 10 deals with the meaning of employment at an establishment in Great Britain in terms which make use throughout of the present tense. The second group of sections in Part II deals with discrimination by other bodies. Section 11 deals with partnerships. It makes it unlawful for a firm to discriminate against a woman who is seeking a position as partner and against a woman "who already holds that position". But it makes no mention of women who are no longer partners but who may - for example - be seeking a reference. Section 12, which deals with membership of trade unions, follows the same pattern. It protects a woman who is applying for membership and a woman who "is" a member of the organisation. But it makes no mention of a woman who is no longer a member.

  99. I would hold that, taken overall and when given their ordinary meaning in their context, these provisions indicate that the phrase "employed by him" in section 6(2) of the 1975 Act includes a woman who is employed by the alleged discriminator but that it does not include a woman who is no longer employed by him.

    (b) Race Relations Act 1976, s 4(2): "employed by him"

  100. I can see no grounds for giving a different meaning to the phrase in this context from that which I would give to it in section 6(2) of the Sex Discrimination Act 1975. The wording of section 4(2) of the 1976 Act is precisely the same except that it refers to a person where section 6(2) in the 1975 Act refers to a woman. The wording of section 4(4) of the 1976 Act matches that of section 6(7) of the 1975 Act, and sections 7, 8, 10 and 11 of the 1976 Act deal with contract workers, the meaning of employment at an establishment in Great Britain, partnerships and membership of trade unions in the same way as these matters are dealt with in the corresponding sections of the 1975 Act.

  101. So I would that the phrase "employed by him" in section 4(2) of the 1976 Act includes a person who is employed by the alleged discriminator, but that it does not include a person who is no longer employed by him.

    (c) Disability Discrimination Act 1995, s 4(2): "whom he employs"

  102. The first thing that strikes one about the language of this subsection is that it does not use the participle "employed". It uses instead the verb "employs". As my noble and learned friend Lord Rodger of Earlsferry observed in the course of the argument, this was an odd choice of language if the draftsman's instructions were to cover the position of persons who were no longer employed by the alleged discriminator. And it was odd too, if those were his instructions, that this was not picked up during the passage of the Bill through Parliament. So in this case one starts from the position that the ordinary and natural meaning of the phrase is that it includes a person who is employed by the alleged discriminator, but that it does not include a person who is no longer employed by him. The question is whether there is anything in the context which requires that the phrase be read differently so that it includes a person who is no longer employed by the alleged discriminator.

  103. I can find nothing in section 4(2) itself which points to a different conclusion. Section 4(3) of the 1995 Act, like its counterparts in sections 6(7) and 4(4) of the 1975 and 1976 Acts, is cast in the present tense. So too are sections 12 and 13 of the 1995 Act which deal with discrimination against contract workers and by trade organisations. There are number of other more subtle indications that the focus of this Act was on applicants for employment and those in employment, not those on those whose employment has come to an end: see, for example, the wording of the exemption for small businesses in section 7. I can find no support anywhere else in the Act for the argument that section 4(2) extends to persons who are no longer in the employment of the alleged discriminator.

    COMMUNITY LAW

  104. In Mrs. Rhys-Harper's case it is necessary, as I said earlier (see para 23), 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"). The conclusion which one draws from this exercise may have implications for all the other cases too, as I shall explain later. The Directive does not, of course, have direct effect on the relationship between a woman and her employer. The third paragraph of article 249 of the EC Treaty (formerly article 189 EEC) provides that a directive shall be binding, as to the result to be achieved, upon each member state to which it is addressed but that it shall leave to the national authorities the choice of form and method. So a directive works its way into our domestic system by means of the legislation which is designed to give effect to it. It is then for the courts to interpret that legislation, as far as possible, in a way that gives effect to this country's obligations under the treaty.

  105. In Litster v Forth Dry Dock and Engineering Co Ltd [1990] 1 AC 546, 559E-F Lord Oliver of Aylmerton said that the approach to the construction of primary and subordinate legislation enacted to give effect to the United Kingdom's obligations under the EEC treaty was not in doubt:

    If the legislation can reasonably be construed so as to conform with those obligations - obligations which are to be ascertained not only from the wording of the relevant directive but from the interpretation placed on it by the European Court of Justice at Luxembourg - such a purposive construction will be applied even though, perhaps, it may involve some departure from the strict and literal application of the words which the legislature has elected to use.

    In Webb v Emo Air Cargo (UK) Ltd [1983] ICR 175, 186 Lord Keith of Kinkel said:

    .... it is for a United Kingdom court to construe domestic legislation in any field covered by a Community Directive so as to accord with the interpretation of the Directive as laid down by the European Court of Justice, if that can be done without distorting the meaning of the domestic legislation ....

    At p 187 he referred to the way in which the European Court in Marleasing SA v La Comercial Internacional de Alimentacion SA (Case C-106/89) [1990] ECR I-4135 expressed the obligation which is binding on the courts in applying national law, whether the provisions in question were adopted before or after the directive:

    As the European Court of Justice said, a national court must construe a domestic law to accord with the terms of a directive in the same field only if it is possible to do so. That means that the domestic law must be open to an interpretation consistent with the directive whether or not it is also open to an interpretation inconsistent with it.

    The European Court took the opportunity in Coote v Granada Hospitality Ltd (Case C-185/97) [1999] ICR100, 111-112, para 18 to re-state this point:

    As follows from Marleasing SA v La Comercial Internacional de Alimentacion SA (Case C-106/89) [1990] ECR I-4135, 4159, para 8 and Wagner Miret v Fondo de garantia salarial (Case C-334/92) [1993] ECR I-6911, 6932, paras 20 and 21, in applying national law, in particular legislative provisions which, as in the present case, were specially introduced in order to implement the Directive, the national court is required to interpret its national law, so far as possible, in the light of the wording and the purpose of the Directive in order to achieve the result pursued by the third paragraph of article 189 of the EC Treaty.

  106. The phrase "employed by him" in section 6(2) of the Sex Discrimination Act 1975 is, as I have said, ambiguous. I think that it is possible to construe it as referring to a woman who is no longer employed by the alleged discriminator as well as to a person who is employed by him, although I do not think that that is what the phrase means when domestic rules of construction are applied to it and it is taken in its context. So the question which arises in Mrs. Rhys-Harpers' case is whether Directive 76/207/EEC, as interpreted by the European Court, requires us to adopt that possible construction.

  107. There is nothing in the wording of the Directive which makes it plain to the domestic reader that its purpose was to extend the principle of equal treatment for men and women as regards access to employment to cases where the employment relationship has come to an end. It refers in its long title to "the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions." The preamble too refers to access to employment, training and promotion and to "working conditions, including pay", as does article 1 which describes the purpose of the Directive. One finds here the familiar categories of people seeking employment, training or promotion on the one hand and those who are in work on the other. Nothing is said about ex-employees.

  108. The articles which are most directly in point with regard to the question what scope is to be given to the expression "working conditions" are these:

    Article 5

    1.

    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 grounds of sex.

    ....

    Article 6

    Member States shall 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 articles 3, 4 and 5 to pursue their claims by judicial process after possible recourse to other competent authorities.

    Article 7

    Member States shall take the necessary measures to protect employees against dismissal by the employer as a reaction to a complaint within the undertaking or to any legal proceedings aimed at enforcing compliance with the principle of equal treatment.

    Article 8

    Member States shall take care that the provisions adopted pursuant to this Directive, together with the relevant provisions already in force, are brought to the attention of employees by all appropriate means, for example at their place of employment.

    But here too no mention is made of the situation where the employment relationship is at an end.

  109. What then is to be said about the purpose of the Directive? Here one must turn for guidance to the decision of the European Court in Coote v Granada Hospitality Ltd [1999] ICR 100. In that case, after settling a sex discrimination claim against her employer, the applicant had left the employer's employment by mutual consent. She then asked the employer to supply a reference to the employment agency through which she was trying to find another job. This was refused. She then brought proceedings against the employer under section 4 of the Sex Discrimination Act 1975, which deals with victimisation, in which she alleged that this response was a reprisal for her previous claim of sex discrimination.

  110. The European Court saw this as an issue of judicial protection within the meaning of article 6 of the Directive. It explained its approach in [1999] ICR 100, 112, para 19:

    In those circumstances, the questions put by the national court must be understood as seeking to ascertain, for the purpose of interpreting national provisions transposing Directive (76/207/EEC), whether the Directive 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.

    It went on to develop this point in the following paragraphs.

  111. The court noted in para 20 that it followed from article 6 that the member states must ensure that the rights conferred by the Directive could be effectively relied on before the national courts by the persons concerned. In para 21 it observed that the requirement laid down by that article reflected a general principle of law which underlies the constitutional traditions common to the member states and which was also enshrined in article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. In para 23 it emphasised that article 6 of the Directive was an essential factor for attaining the fundamental objective of equal treatment for men and women which, as the court had repeatedly held, was one of the fundamental human rights whose observance it had a duty to ensure. In para 24 it said that the principle of effective judicial control which article 6 of the Directive lays down would be deprived of an essential part of its effectiveness if it did not cover measures which the employer took as a reaction to legal proceedings brought by the employee with the aim of enforcing the principle of equal treatment. The conclusion which it expressed in para 25 was that it was not possible to accept the argument that such measures did not fall within the scope of the Directive if they are taken after the employment relationship has ended.

  112. It would have been possible for the court to find a more direct answer to the problem in article 5 of the Directive regarding working conditions as indicated by Advocate General Mischo in his opinion at p 104, paras 11-12. He said that an employer's appraisal of the quality of the services rendered fell entirely within the scope of the relationship between employee and employer, and that the service rendered by the employer in providing the employee with what he described as "the parting gift" of a reference could not be severed from the employment relationship. He also said that the conditions regarding dismissal were to be construed broadly, as was clear from Burton v British Railways Board (Case 19/81) [1982] ICR 328, 348, para 9 where the court said that in the context of the directive the word "dismissal" must be widely construed so as to include termination of the employment relationship between a worker and his employer, even as part of a voluntary redundancy scheme. But the court did not go down that road. The principle underlying its approach was the right of a person who claimed to have been discriminated against by her employer to obtain an effective remedy.

  113. The conclusion which I would draw from this case is that the interpretation placed on the Directive by the European Court does not require your Lordships to read the words "employed by him" in section 6(2) of the Sex Discrimination Act as including each and every case where the employment relationship has come to an end. If that reading of those words were to be adopted it would enable all ex-employees to claim that they were entitled to the benefit of that subsection. It would extend the principle of equal treatment to them as a class, without regard to the question which was of concern to the court which was that the rights conferred by the Directive could be relied upon effectively in the courts. It would also raise problems which the court did not address about the scope of the employer's liability. If the protection were to be extended to ex-employees as a class without some words of qualification, employers would be exposed to a potential liability for unconscious and perhaps trivial acts of discrimination for the rest of the employee's life. There is no indication in court's decision that it saw this as one of the purposes of the Directive. The Advocate General's description of a reference as a "parting gift" which could not be severed from the employment relationship suggests that he regarded the expression "working conditions" in article 5 as referring to things that fell within the employment relationship.

  114. It is to be noted however that the expression which the European Court used in Coote at p 112, para 19 to describe the period which falls within the scope of the Directive was "the employment relationship". Buxton LJ used the same phrase in Rhys-Harper v Relaxion Group Plc [2001] ICR 1176, 1185, para 25 when he said that he agreed with Peter Gibson LJ's conclusion in Post Office v Adekeye [1997] ICR 110 that strong indications of post-contract activity would be needed within the events listed in section 6(2)(a) in order to compel a reading of "a person employed by him" in what he described as "the unnatural sense" of a person previously employed. But, as my noble and learned friend Lord Scott of Foscote has pointed out, the relationship between the employer and the employee does not necessarily come to an end at the precise moment when their contract terminates. There may well be things that need to be done to bring their relationship to an end after the contract has terminated. There may also have been agreements entered into during the employment about benefits to be enjoyed afterwards, such as the continued use of sports facilities, which remain to be implemented or there may be evidence that it is the employer's practice to allow the continued use of such facilities. At that stage the employer will, of course, be dealing with someone who strictly speaking is a former employee. But the fact that this description applies will not of itself remove that person from the scope of the Directive, so long as the transactions that remain to be completed are attributable to a continuation of their relationship as employer and employee.

  115. I think that the approach which is indicated by the decision in Coote strikes a reasonable balance between the interests of the employee after the employment is ended and the risk to the employer of being exposed to claims indefinitely. I would extend the same meaning to the words "employed by him" in section 6(2) of the Sex Discrimination Act 1975 and, as I see no grounds for giving a different meaning to the same words where they appear in section (2) of the Race Relations Act 1976, to those words in that context also. That being so, as there are no rational grounds for a different approach to be taken to the use of similar language in the context of discrimination against disability, I would extend the same meaning to the words "whom he employs" in section 4(2) of the Disability Discrimination Act 1995. Whether or not there is still an employment relationship will be for determination according to the facts of each case.

  116. I would therefore, with respect, differ from the decision of the Court of Appeal in Adekeye's case that the words "a person employed by him" in section 4(2) of the Race Relations ct 1975 did not apply to a person who was no longer an employee. That approach, which confines the scope of the protection strictly to the duration of the contract, seems to be out of keeping with the approach of the European Court in Coote when it used the expression "the employment relationship". I too would hold that that case was wrongly decided.

    CONCLUSIONS

    (1) Rhys-Harper v Relaxion Group Plc

  117. The issue in this case, as focused in the agreed statement of facts and issues, is whether, on a proper construction of section 6(2) of the Sex Discrimination Act 1975, an employment tribunal has jurisdiction to entertain a claim of sex discrimination where the act or conduct complained of occurred after the employment relationship has ended. In his opening remarks Mr. Reynold QC for the appellant said this was what her case was about. He said that her complaint was that she had been sexually discriminated against after her employment had come to an end because the respondent's general manager, Mr. Adamson, failed to investigate properly a complaint which she made at the hearing of her appeal against her dismissal on 9 November 1998 that she had been harassed on the ground of her sex by Mr. Osborn. Mr. Reynold did not suggest that Mr. Adamson's investigation into this complaint had any bearing on his decision that there were sufficient grounds for the appellant's dismissal and that Mr. Osborn's decision to dismiss her should stand.

  118. I would hold that section 6(2) of that Act does not apply to the appellant's complaint of discrimination as so presented. What is alleged is a single and self-contained act of discrimination, which is said to have occurred when the appellant was no longer employed by the respondent. As for the wider question whether it was attributable to a continuation of their employment relationship, I would hold that there is nothing in this way of presenting her case which links the alleged act of discrimination by Mr. Adamson to the conditions of her employment. The appellant did not ask Mr. Adamson to investigate her complaint, and there has been no suggestion that she had any right to do so. She was no longer employed in the respondent's premises, so she was not in a position to benefit in any way from any decisions that Mr. Adamson might have taken as a result of that investigation. Nor is there anything in it that links Mr. Adamson's alleged failure to investigate this complaint properly to the appeal and his decision to confirm her dismissal.

  119. But Mr. Reynold sought to present her case in a different way when he was replying to Mr. Reade QC for the respondent. He based this presentation of it on the fact that the appellant received two letters from Mr. Adamson on the same day. One of these letters dealt with the outcome of the appellant's appeal against her dismissal by Mr. Osborn. In the other Mr. Adamson said that the allegation which the appellant made at the hearing of her appeal of sexual harassment by Mr. Osborn had been investigated and that there was insufficient evidence to establish a case against him. Mr. Reynold said that fact that these two letters arrived together showed that Mr. Adamson's decision in the appeal was linked to his investigation into the appellant's allegation. The allegation had arisen in the course of her appeal against her dismissal. What the appellant was alleging therefore was bias on the part of Mr. Adamson as the decision-taker in her appeal against her dismissal. Mr. Reynold said that it was not realistic to divorce the appeal procedure from the ambit of the allegation of sexual harassment. The reality was that they were part and parcel of the same thing.

  120. This presentation of the appellant's case makes it necessary to examine the history of her allegations against Mr. Osborn more closely. According to a transcript of the notes of evidence of the chairman of the employment tribunal, the appellant said in her evidence that she did not bring the issue of sexual discrimination up when she attended the disciplinary hearing on 12 October 1998 which was conducted by Mr. Osborn. She said that this because he was the perpetrator and because his girl friend was there. But the fact is that, for whatever reason, she did not mention this issue at the hearing. Moreover, she made no mention of sexual discrimination in her letter of 19 October 1998 in which she appealed against Mr. Osborn's decision to dismiss her on the ground of misconduct. It was not until she saw Mr. Adamson at the appeal hearing on 9 November 1998 that she mentioned the issue for the first time. She mentioned it again when she was setting out the details of her complaint in her application to the employment tribunal. She said that she was putting forward a complaint of sexual harassment and constructive dismissal against Mr. Osborn, and gave details of various problems of this nature which she had encountered with him during her employment. At the end of this document that she said that she felt that she had been sacked for misconduct once she had reported the sexual harassment. But the history which I have outlined shows that she did not make any such report until she mentioned the matter to Mr. Adamson in the course of the hearing of her appeal against her dismissal.

  121. Although Mr. Reynold did not put her case quite in these terms, it appears to me in the light of this further background that the case which he was seeking to put forward in his reply was that the appellant had been victimised within the meaning of section 4 of the Sex Discrimination Act 1975 by Mr. Adamson in his conduct of the hearing of the appeal against her dismissal. Mr. Reynold said that the appellant's case was that Mr. Adamson's decision in the appeal was biased against her because of the complaint which she had made. An employment tribunal does not have jurisdiction under section 63 of the Sex Discrimination Act 1975 to investigate an allegation of bias on the part of the decision-taker in an appeal by an employee against her dismissal. But it does have jurisdiction under that section to deal with a complaint that she has been the victim of an act of discrimination by way of victimisation within the meaning of section 4 of the 1975 Act which is unlawful under Part II of the Act.

  122. In my opinion there is no doubt that an employment tribunal has jurisdiction to entertain a complaint of discrimination by way of victimisation which relates to conduct by an employer in his determination of an appeal by a woman against her dismissal from his employment. Article 7 of Directive 76/207/EEC requires member states to take the necessary measures to protect employees against dismissal by the employer as a reaction to a complaint within the undertaking aimed at enforcing compliance with the principle of equal treatment. Section 6(2)(b) of the 1975 makes it unlawful for an employer to discriminate against a woman by dismissing her. Discrimination within the meaning of section 6(2) includes discrimination by way of victimisation as defined by section 4. Section 6(2)(b), when read together with section 4, provides the protection which article 7 requires. An act of dismissal by way of victimisation is made unlawful by section 6(2)(b). So there is no need here for the appellant to rely on the obligation to ensure effective judicial control for the protection of the rights provided by the Directive arising from article 6 which the European Court of Justice described in Coote v Granada Hospitality Ltd [1999] ICR 100. The issues of statutory interpretation on this presentation of her case appear to me to be to be quite straightforward. The appellant's difficulty lies in the fact that her complaint that she was victimised by Mr. Adamson in the course of the proceedings regarding her dismissal was not presented in this way at any stage in these proceedings until it was mentioned by Mr. Reynold in his closing address to your Lordships.

  123. With some hesitation I have come to the conclusion that the events which happened in her case, as now presented, were all attributable to the employment relationship. There are various ways in which the facts can be analysed. But however this is done it would, as Mr. Reynold said, be unrealistic to ignore the fact that the victimisation of which she complains was part and parcel of the events that were attributable to her employer's act in dismissing her. The stage at which it could be said that the employment relationship had ended had not yet been reached. I would allow this appeal.

    (2) Donald D'Souza v London Borough of Lambeth

  124. Mr. D'Souza's complaint is of racial discrimination and victimisation contrary to section 4(2), or alternatively section 4(1), of the Race Relations Act 1976. The act of which he complains is the failure by his former employer to re-instate him when ordered to do so by the Employment Tribunal.

  125. I would hold that section 4(2) does not apply to his case, as it is plain that the act of which he complains occurred after the employment relationship had come to an end. I would hold that section 4(1) does not apply to his case either. His argument was that the decision by his former employer not to reinstate him when ordered to do so by the Employment Tribunal under what is now section 113(a) of the Employment Rights Act 1996 was a refusal or a deliberate omission to offer him that employment within the meaning of section 4(1)(c) of the 1976 Act. I would reject that argument. His former employer was not being required to offer him that employment. What it was ordered to do by the tribunal was simply to reinstate him on the terms which the order itself specified. Failure to comply with an order for reinstatement by the tribunal will result in an award of compensation under the statute. There is no other remedy. What the Act does is to lay down a statutory procedure by which the employee obtains the benefit of the original contract. I would dismiss this appeal.

    (3) Nicholas Kirker v British Sugar Plc and Others

  126. These are all cases where it is said that allegations were made under section 4(2) of the Disability Discrimination Act 1995 of discrimination and victimisation after the employment relationship had come to an end. I would hold that the phrase "whom he employs", which qualifies the whole of that subsection, does not make it unlawful for an employer to discriminate against a disabled person who is no longer in his employment and with whom he no longer has an employment relationship. As to the facts, the question in each case is whether the interval in time was too long for it to be reasonable, in the light of all the surrounding circumstances, to conclude that there was still an employment relationship.

  127. A period of about one year and ten months had gone by before Mr. Jones asked for the return of his business cards. The other cases all relate to requests for references. I consider that these cases all lie close to the limits of what comes within the boundaries of the employment relationship. A request which is made after a short interval may well be regarded as having been made while there was still an employment relationship. But it well be thought to be unreasonable to expose employers to the risk of proceedings before an employment tribunal after a long interval. It is one thing to hold the door open, as it were, for this purpose for a few weeks or possibly for a few months. It is quite another for an employer to be compelled to provide references for an ex-employee, perhaps several times over, in response to repeated requests long after the employment has ended.

  128. The solution to this problem may well lie, as my noble and learned friend, Lord Nicholls has pointed out, with employers in the first instance. If it is the employer's practice to give references to former employees after such a long interval, then the employer must be careful not to discriminate. If the employer's practice is to cease giving references after a given interval, then the refusal of a reference to a particular individual after that interval has passed will not, without more, be discriminatory. The "chilling effect" of these propositions is regrettable but inescapable. It is by no means unknown for employers to seek safety by adopting practices in the giving of references which are as parsimonious as possible. For smaller employers, of course, the number of former employees asking for references may be too few to enable them to develop a practice which will protect them against vexatious claims. In their case employment tribunals will need to be particularly vigilant.

  129. With some hesitation I have come to the view that, although these cases lie close to the borderline, it has not been shown on the facts which are available so far that the employment tribunals do not have jurisdiction to consider them. For this reason I would allow these appeals and remit the cases to the tribunals for further consideration.

    Lord Hobhouse of Woodborough

    My Lords,

  130. These appeals concern the proper understanding of the provisions of three anti-discrimination Acts and their application to the six cases concerned. The courts below were bound by the Court of Appeal decision in Post Office v Adekeye [1997] ICR 110. It is necessary to decide whether that case was rightly decided. The appeals all came before the House as cases relating to the jurisdiction of Employment Tribunals.

  131. But, if one is to reject the bright line rule stated in Adekeye and adopt a less absolute criterion, it becomes necessary, in considering the disposal of the individual appeals, to consider whether by that criterion the Tribunal should have accepted jurisdiction. This involves ascertaining what claim or claims it was that the aggrieved party made in the Tribunal proceedings and to what extent they were rendered inadmissible by failure to present the claim to the Tribunal within the period of three months beginning when the act complained of was done: see, for example, s.76(1)(a) of the 1975 Act. A feature of discrimination cases in the employment field is that the obvious way of formulating a claim may be ruled out because the complainant has (without sufficient excuse) allowed the three months time limit to expire without bringing proceedings. The complainant then has, artificially, to find some act within the three month period on which to build the claim. (This point is particularly relevant to the disposal of the Rhys-Harper appeal.)

  132. The scheme which I will follow in this Opinion is, first, to make some general observations about anti-discrimination legislation, then to discuss the Adekeye point, then, the victimisation point and then, finally, to apply my conclusions to the individual cases.

    ANTI-DISCRIMINATION LEGISLATION

  133. The Sex Discrimination Act 1975 broke new ground for English domestic law and adopted a fairly cautious approach. The criteria for discrimination and the scope of the Act's application were fairly narrowly drawn. It is not right to view it, which was the invitation of the appellants, as creating a comprehensive anti-discrimination scheme. The Race Relations Act of the following year was in the same mould but at the same time adopted a more generalised criterion of unlawful discrimination. The former Act had said:

    a person discriminates against a woman if on the grounds of her sex he treats her less favourably than he treats or would treat a man.

    The latter Act uses the phrases "on racial grounds" and "other persons" which do not depend upon the racial group to which the actual complainant personally belongs or the racial group to which the comparator belongs provided the relevant racial ground would not apply to him but is otherwise comparable. For example, the relevance of race may be to the fact that the complainant is married to a person of a different race or has adopted children of a particular race. The drafting of the 1995 Act also shows signs of a developing confidence of those responsible for anti-discrimination legislation and refers to the "reason" for treating someone less favourably. The same developments are to be observed in other provisions of the three Acts. In construing each of these Acts and assessing and understanding decisions made under one or other of them, it is necessary, if errors are not to be made, to have regard to the actual wording of the relevant Act as is illustrated by what I have said about the different criteria used in the 1975 and the 1976 Acts.

  134. Another self-evident point is that the drafting of each Act had to be adapted to the type of discrimination at which it is directed. Thus the Disability Discrimination Act 1995 inevitably has to relate to direct discrimination and include a defence of justification. It is coupled with qualified obligations to make special arrangements for those with disabilities, including, in limited circumstances, adapting buildings. Similarly, each Act makes specific but different provision for its scope of application and those it will affect. But each Act also has a similar structure and, as between the 1975 and 1976 Acts, some provisions are expressed in the same or very similar words. This is particularly so in relation to the 'employment field' provisions. I agree that these statutes should be read as contributions to a developing scheme of anti-discrimination law and such words should not without good reason be given a different reading as between one of the statutes and another. They are not statutes to be formally 'read with' each other but they are statutes which reflect a consistent (though developing) legislative policy. The wording of the 'employment field' provision in the 1975 and 1976 Acts is in a relevant respect slightly different from the 1995 Act which, instead of using the phrase "employed by him", uses the phrase "whom he employs". None of the counsel in these appeals submitted that a distinction should be made between the Acts on this ground. I consider that they were right. I will accordingly use the 1975 Act as the reference point save where it is necessary to refer to the Acts separately.

  135. The structure of the relevant parts of each of the Acts is also similar. They start with a definition of the relevant test of discriminatory conduct: Part I in the 1975 Act. They continue by defining (with elaborations or qualifications) the 'fields' in which the Act is to apply: Parts II and III of the 1975 Act. They then add provisions making some related acts unlawful and granting some general exceptions to the application of the 'fields': Parts IV and V of the 1975 Act. The words directly involved in the Adekeye point are in the Part defining the 'employment field'. All these cases were said to arise in the employment field, which in all three Acts is the primary field of application. The victimisation point arises from provisions which in the 1975 and 1976 Acts appear in the Part defining discriminatory conduct but which, in the 1995 Act, are placed in the later Part which (inter alia) makes other related acts unlawful (Part VII). In all three Acts the actual wording of the victimisation provision is similar and is by way of extending the definition of 'discrimination'. In relation to sex discrimination, what is involved in victimisation has been the subject of a decision of the European Court of Justice in the case of Coote (case C-185/97) applied by Morison J in Coote No.2 [1999] ICR 942, to which I will revert later. 

  136. Adekeye was an employment field case under the 1975 Act. It was therefore essential for the complainant to show that the Employment Tribunal had jurisdiction under Part II of the 1975 Act. Her complaint was that she had been summarily dismissed by her employers, the Post Office, on racial grounds and that, on the same grounds, she had again been discriminated against when she had appealed against her dismissal under the Post Office's internal appeal procedure and her appeal had been dismissed. Her complaint against her dismissal was out of time but her complaint relating to her appeal was not. The Court of Appeal referring to the wording of s.4(2) of the 1976 Act formulated the question to be answered as being: Could a person who had been dismissed still be described as "a person employed by" the person who had already dismissed him? They adopted a simple temporal test: did the relevant act come before or after the termination of the employment? The Court of Appeal, following an earlier decision by the Employment Appeal Tribunal in Nagarajan v Agnew [1995] ICR 520, concluded that being employed and being dismissed were mutually inconsistent states. The Court of Appeal accordingly held that the Employment Tribunal had no jurisdiction. It was this decision by which the courts below were bound and which caused them to decline to entertain the appellants' various applications.

  137. Was Adekeye right? As a matter of the simple language of s.4(2) and its equivalent in the 1975 and 1995 Acts, there is much to be said for it and it provides a rule of simple application. But a different view is possible. The words are not used to refer to a status but to a connection. Under the Acts the discriminatory treatment does not have to be an infringement of the complainant's contractual rights. It can simply be less favourable treatment than that afforded to others in a like position. To introduce at this point into the structure of the Acts a criterion of strict contractual status would be anomalous having regard to their scheme as a whole. There is the further recommendation for the connection approach that it avoids some of the individual anomalies as illustrated by the facts of Adekeye itself and referred to in the judgment in that case. Why distinguish between the discriminatory dismissal and the discriminatory conduct during the internal appeal against that dismissal? Indeed, the complainant may have a contractual right to invoke the appeal procedure and to a fair consideration of his or her appeal. The remedy for which the complainant may be asking in that appeal procedure is the revocation of the dismissal decision. To construe the Act so that the dismissal can be the subject of a discrimination complaint but the handling of the appeal cannot is irrational and unnecessary. The scheme of the Acts and the context in which the relevant words occur suggest that, rather than importing a crude temporal test, they describe the substantive scope within which the various duties not to discriminate under the Acts apply in the employment field.

  138. But that still leaves a problem. The purpose of the relevant Part of these Acts is to define the scope of their operation (and consequentially, in relation to the 'employment field', the jurisdiction of Employment, formerly Industrial, Tribunals). One therefore needs, before one can properly discard the Adekeye interpretation, to see whether the alternative interpretation has a sufficient degree of clarity to be a fair reading of the words used and to perform the defining function of these words in the Acts. In the 1975 Act, the relevant words "woman employed by him" only appear in s.2 of the Act. Subsection 2(1) does not use such words since it deals with those seeking employment; it uses the words "in relation to employment by him". In subsection 2(2) where the words are used, no problem need arise under paragraph (a) since the wording of that paragraph read as a whole clearly refers to things happening during the currency of the woman's employment by the discriminator; (a) is self limiting and therefore does not raise the question presently under consideration nor does it need a restricted meaning to be given to the introductory phrase. It is in paragraph (b) that the question manifests itself. Paragraph (b) includes two elements:

    • first, "by dismissing her";

    • secondly, by "subjecting her to any other detriment".

    The first should be read as referring to the whole of the process of dismissal. So, if the internal procedures of the employer or the legitimate expectations of the employee (or indeed the avoidance of an 'unfair' dismissal) include a review of the dismissal decision, whether by appeal or otherwise, (b) should be read as including that review within its scope and any discrimination on grounds of the sex of the employee will be contrary to the law. (I have used the word 'employee' in this sentence deliberately to demonstrate that it is a perfectly natural use of language to refer to the woman in this situation in that way.) Thus the content of the first part of (b) suffices to guide the giving of a non-legalistic meaning to the earlier phrase "employed by him". In my judgment a similar approach should be adopted in relation to the second part of (b) - "or subjecting her to any other detriment", a phrase which can include the denial of a benefit and ties in with the phrase "treats her less favourably" in s.1.

  139. The words "subjecting her to any other detriment" are general and undefined but it can be seen that the problem of construction is to decide what breadth they should be given and whether, on the facts of any given case, the facts fall within them. Guidance upon the scope can again be derived from the content of the provision. What are the detriments which an employer may subject an employee to which can fairly be referred to as "any other detriment" in the context of this subsection? The answer must lie in a test of proximity. Does the conduct complained about have a sufficiently close connection with her employment? Is it sufficiently similar to the other conduct mentioned in the subsection? Any criterion of proximity has as its antithesis the concept of remoteness. Remoteness can have, as an element, remoteness in time. The further removed the conduct is in time from the employment, the greater the likelihood that the conduct is too remote and that the employment has become merely a matter of history. This not a resurrection of the Adekeye test; it involves no cut-off point but is simply a recognition that, as time passes, it may become more difficult to show that the conduct complained of had a sufficient connection with the employment and a sufficient similarity with the other conduct falling within subsection (2). Thus it is relevant to ask whether the conduct complained of, if committed whilst she had still been currently employed by the person complained about, would have come within s.6(2)(a); but she will also have to show that other former employees would, in the same circumstances, not have been subjected to the detriment - would have enjoyed the benefit denied to her.

  140. I appreciate that such an approach will ultimately lead to fact specific decisions in a number of cases but that is what is involved in the rejection of an arbitrary time-based criterion. It should not lead to any additional uncertainty for employers since the construction which I prefer is based upon a factual connection with the employment which it should be easier for the lay employer to understand and apply than an essentially legal criterion depending upon identifying the moment when 'dismissal' was complete. The nub is that the introductory words "a woman employed by him" are to be read with the rest of subsection (2) and relate to a substantive and proximate connection between the conduct complained of and her employment by the alleged discriminator.

  141. In assessing whether the requisite connection exists, a starting point is to ask whether the same conduct during the currency of the employment would be unlawful. Likewise it is relevant whether or not a legitimate expectation of the benefit, or the contractual right to it, has continued and whether other former employees do in the same circumstances enjoy the benefit or suffer the detriment. For example, if other employees are permitted to continue to enjoy the use of the employee's social club after they have retired, but the complainant is not, that will come within the expression "any other detriment" and, if she has been discriminated against on grounds of her sex, she will be entitled to complain.

  142. More difficult is the giving of references since it may refer to many different situations - the refusal of any reference at all, the giving of a limited reference, the giving of an unfavourable reference - and to many different complaints - breach of contract, breach of a legitimate expectation, breach of a duty of care, defamation, discrimination. Also the complainant may well be able to argue that, if the same reference had been refused or given during the currency of her employment, she would have been discriminated against but it of course does not necessarily follow that later conduct would also amount to discrimination. Something more has to be alleged and proved, that she had at the least a legitimate expectation of being given a reference at a later stage and in her then circumstances and that other ex-employees would in the same circumstances have been given one. Likewise, if one has been given but she is complaining about what it does or does not say, she must allege and prove that others in the like circumstances would have received a favourable one. In Spring v Guardian Assurance Plc [1995] 2 AC 296, your Lordships' House considered the extent and content of the obligation to give a reference. Lord Woolf referred at p. 354 to the fact that the position might not be the same once the employee had left his employment and there had been a lapse of time. Discussing the contractual term which might be implied he used the phrase "during the continuance of the engagement or within a reasonable time thereafter". The obligation will not necessarily be open-ended and the later it is asked for the less detail and information it may contain. It must be an obligation which the employer recognises in respect of other ex-employees in the like circumstances, otherwise the complainant cannot say she has been subjected to a detriment or denied a benefit. If the conduct is to be the subject of a complaint under one or other of the anti-discrimination Acts, it must come within and satisfy the criteria of the relevant Act. This illustrates the link in practice between the questions of 'less favourable treatment', denying a 'benefit' and subjecting to a 'detriment'. I will have to revert to the question of references when I come to deal with the appeals in the cases which arose under the 1995 Act.

  143. What I have said in the preceding paragraphs also reflects the view of the European Court of Justice in their decision in the case of Coote (C-185/97). The employee's complaint was that she had been discriminated against on the grounds of her sex in that after leaving her employment she had applied to her former employer for a reference and had been refused one. The back-ground to the dispute was that she had earlier, whilst still actually employed by him, complained about other conduct of her employer and her discrimination claim on that occasion had been settled. The case therefore had a victimisation element. The Industrial Tribunal had rejected her (second) claim under the 1975 Act on the ground that at the time she was refused a reference she was no longer employed by him. However, since her case was also covered by the 'Equal Treatment Directive' (76/207/EEC), the EAT sought an opinion from the ECJ whether that decision was consistent with the Directive's requirement that member states provide effective remedies.

  144. The Advocate-General, at paragraphs 14 to 16 emphatically rejected the Adekeye criterion:

    It would be totally unjustifiable for the application of the prohibition of discrimination on the grounds of sex to a decision on the provision or refusal of references to depend on the moment when that decision was taken .... The court has, moreover, always held with regard to equal pay that the prohibition of discrimination by an employer between employees on grounds of sex does not cease to have effect on the termination of the contract of employment .... I therefore consider that an employer may not discriminate on grounds of sex when providing an employee with references, whatever the moment - whether during or after the period of the employment relationship - at which the decision is taken in that regard or at which those references are requested.

  145. The ECJ in its judgment, after noting the element of victimisation, summarised its ruling upon the question referred in paragraph 28:

    In those circumstances the answer to the questions put by the national court must be that article 6 of the Directive 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 employment relationship has ended, refuses to provide references ....

    It would be possible to read this judgment as limiting the ruling to cases of victimisation but in my view that would not do justice to the reasoning which is more comprehensive. Nor would it pay adequate regard to the clear views expressed by the Advocate-General.

  146. On the return of the case to the EAT, [1999] ICR 942, the Appeal Tribunal recognised that the main issue which they had to consider was "whether it is possible to construe the Act of 1975 so as to enable a complainant to make a victimisation complaint in relation to events that occurred after the employment relationship had terminated". The judgment of Appeal Tribunal given by Morison J, carefully reviewed the reasoning of the Court of Appeal in Adekeye and concluded that it could no longer be followed. Victimisation cases may be a fortiori but within the scheme of these Acts all cases have to pass through the gateway of one of the 'fields' of application and therefore it is still, in an 'employment field' case, necessary to consider the "employed by" question. I consider that Morison J was right and that Adekeye is no longer good law.

    VICTIMISATION

  147. What I have said in the preceding paragraphs is also largely dispositive of the treatment of victimisation cases. Victimisation is in principle a free-standing unlawful wrong. It is ancillary to the main provisions of the relevant Act. It is not dependant upon the primary criterion of discrimination - sex, race, disability. The criteria are different. For example, to use the wording of s.4 of the 1975 Act, the victimisation arises from the complainant having made a sex discrimination complaint against the discriminator or any other person or having assisted another to do so or having given evidence in support of that other. The section has even been amended to bring in other Acts and extends to suspected conduct of the victim either past or future. These criteria go far beyond anything specific to any employment relationship between the victim and the alleged discriminator and are in themselves gender (or race or disability) neutral. There is a saving in each of the Acts to exclude 'victims' who have made false allegations or acted in bad faith.

  148. However it is still necessary for the person making a victimisation complainant to show that the discriminator has treated the person victimised "less favourably than in those circumstances he treats or would treat other persons". This brings one back to the 'field' provisions and, in the 1975 Act, to s.2(2). The less favourable treatment has to come within one part or another of s.2 and, if it is upon s.2(2) that the complainant relies, the complainant must show the requisite connection between the less favourable treatment complained of and her employment, whether it be prospective, future, current or past, by the alleged discriminator. Again the decision of the ECJ is compelling. The Acts must be construed so as not to amount to the denial of a remedy for victimisation and, in particular, not so as to apply an arbitrary temporal test. Once it can be shown that it is a detriment - a disadvantage - to which the employer does not subject others and it can fairly, in the context of s.2(2), be termed any other detriment, the victimised complainant will have proved what is required in this respect. It is certainly not disproved by the mere fact that the complainant is no longer employed by the discriminator.

  149. Victimisation is an a fortiori case which shows that the application of the Adekeye approach is unacceptable. But essentially the same construction of the provisions defining the 'employment field' is to be adopted in victimisation cases and in ordinary discrimination cases. The case must still come substantively within the provisions defining the 'field'.

    THE JURISDICTION QUESTION

  150. In any 'employment field' case there is potentially a jurisdiction question for the Employment Tribunal. Section 63(1) of the 1975 Act (as amended) provides:

    A complaint by any person ('the complainant') that another person ('the respondent') (a) has committed an act of discrimination against the complainant which is  unlawful by virtue of Part II .... may be presented to an employment tribunal.

    There are provisions to the like effect in s.54(1) of the 1976 Act and s.8(1) of the 1995 Act. The Tribunals are bodies with limited jurisdiction. Section 2 of the Employment Tribunals Act 1996 empowers them to exercise the jurisdiction given to them by (inter alia) these Acts. It follows that if the complaint does not fall within the 'employment field' as defined in the relevant Act, the Employment Tribunal does not have jurisdiction to entertain the complaint and must decline to do so, as did the Tribunal in Adekeye.

  151. To categorise any question as going to jurisdiction raises procedural problems for the Tribunal. At what stage of the proceedings should the Tribunal decide the question? Does the actual question go to jurisdiction? Under Adekeye this did not raise any real difficulty for the Tribunal. The complainant had to say when the act complained of had occurred. The time based criteria (the time bar and the date of dismissal) could then be mechanically applied. But if, as is my opinion, that a substantive criterion has to be applied, more may need to be known and some investigation may have to take place. There seems to be no escape from the conclusion that the whole of the 'employment field' provision (in the 1975 Act, s.2) is relevant to jurisdiction. The complainant must prove - satisfy the Tribunal - that his or her complaint comes within the relevant section. If the complainant fails to do so, then the claim must fail both substantively and as a matter of jurisdiction. This would then preclude any consideration whether or not there was any discrimination contrary to the primary provisions of the relevant Act or any victimisation.

  152. But this tidy dichotomy will rarely exist in practice. The question whether the complainant was subjected to some "other detriment" overlaps with (but is not the same as) the question whether the claimant was treated "less favourably". The Tribunal will often find itself in practice in the same position when deciding an issue concerning less favourable treatment as it now does when it has to decide a dispute which turns upon the provisions which define the 'employment field' and will find it advantageous to make use of the same procedures to simplify hearings and separate off those claims which can have no proper basis and those allegations which appear to have no substance in fact. As the cases demonstrate, the Tribunal is competent to decide whether it has jurisdiction and any such decision can be the subject of an appeal to the Appeal Tribunal.

    THE INDIVIDUAL CASES

  153. In all the cases under appeal the courts below had treated themselves as bound by Adekeye. They accordingly decided them against the present appellants on jurisdictional grounds (and/or time bar) without considering or investigating the merits of the appellants' claims. I have given my opinion that Adekeye is not good law; it follows that all the appeals should be allowed and remitted for further hearing unless there is some other factor which justifies not taking that course. 

    Rhys-Harper

  154. The whole of her complaint involved allegations of less favourable treatment which fell within the ambit of the 'employment field' as being either part of the dismissal process itself or part of the internal review of her dismissal. Her primary problem was that she had not made any claim in the Employment Tribunal until 18th February 1999. The cut-off date for her was therefore 19th November 1998. She had been dismissed at a disciplinary hearing held on 10th October. She had exercised her right of internal appeal and the hearing was on 9th November. Originally her complaints were confined solely to her being dismissed on the ground of what had occurred on 6th October (the date of the incident involving guests at the swimming pool for which she was being disciplined). However when giving evidence at the hearing of her internal appeal, which was conducted by the Respondents' general manager, Mr. Adamson, she stated that she been subjected to sexual harassment at an earlier stage of her employment and referred also to other earlier acts of sexual discrimination at earlier dates which she had not complained about at the time. Mr. Adamson asked her to give him a written statement concerning the earlier incidents so that he could investigate them himself. (The written statement has not been put in evidence in the present proceedings.) She later told the Employment Tribunal that "it was investigated badly."

  155. On 30th November Mr. Adamson sent Miss Rhys-Harper two separate letters. One, headed "Re Appeal Hearing" consisted of one sentence:

    Following your appeal against your dismissal, having investigated the events the company has found there was sufficient grounds to dismiss and therefore the decision stands.

    The other headed "Re Allegation of sexual harassment against Ken Osborn". In it Mr. Adamson referred to the allegation of sexual harassment she had made against Mr. Osborn, informed her that a full and thorough investigation had been made into the alleged incident (which she had said had occurred at an earlier date when she had gone into the mens' showers and no one else had been present), that staff had been interviewed, including Mr. Osborn, that it was confirmed that she had reported the incident but had asked for the information to remain private, that other staff had been unable to substantiate or witness the alleged harassment and that accordingly the company had concluded that there was "insufficient evidence to establish a case against Mr. Osborn". He ended his letter by stressing that the company did not condone harassment or victimisation and any member of staff found guilty of any form of harassment would be dealt with in accordance with company policy and disciplinary procedures, adding that if additional evidence should become available a further investigation would be held.

  156. In her application to the Employment Tribunal, she confined her complaint to sexual harassment and (it seems) constructive dismissal. Her particulars of her complaint only referred to alleged incidents of sexual harassment and bullying occurring over a period January 1998 to October 1998 and to the incident which occurred on 6th October 1998 and had led to her dismissal. She alleged that the investigation of the 6th October incident and her complaints about Mr. Osborn had not been investigated properly by the company prior to dismissing her. The Employment Tribunal considered that time could be treated as running from 30th November and that her claims were accordingly in time. Before the Tribunal she had appeared in person and the company had been unrepresented and had merely made a short written submission.

  157. Before the Appeal Tribunal both sides were represented, the company by an employee and Miss Rhys-Harper by counsel. Her counsel put her case solely on the basis of sexual discrimination submitting that "the act complained of" was "the act of failure to investigate properly and dismissing her complaint" (sic). But it was not part of her case that she had asked Mr. Adamson for an investigation, nor has she alleged that in that investigation she was treated unfavourably on the grounds of her sex. The Appeal Tribunal were nevertheless prepared to treat this complaint as referring to a continuing breach still existing on 30th November but they rejected the claim on the basis of Adekeye. If the Appeal Tribunal was not correct in its conclusion about the time bar point, the claim would have failed anyway; the Adekeye point would be academic.

  158. Your Lordships consider that the case should be remitted to enable the further consideration of her claim unfettered by the decision in Adekeye. For myself, I have considerable doubts whether this is an appropriate order to make. There seems to have been a mistaken assumption that under the 1975 Act there was an entitlement to make a free-standing complaint of sexual harassment and to overlook the necessity for establishing a breach within the criteria stated in s.1(1)(a) of the Act and satisfying the substantive requirements of s.6(2)(b) which I have endeavoured to explain. The fact that Adekeye was wrong does not mean that s.6(2) is not still relevant to the admissibility of the claim now being put forward. Nor does it mean that the 3 month time limit can be forgotten about or that it is unnecessary to do justice as between both parties and to consider whether she had ever made the complaint now relied on prior to its being introduced during the hearing. Since the decision of the House is that the case should be remitted, I trust to a freshly constituted Tribunal which will reconsider the whole matter, I will say no more about these points as they will now have to be subject of a decision of an Employment Tribunal. If her present complaint was time barred at the time she first made it, it remains time barred now.

    D'Souza

  159. This case too has complexities. In 1992, the appellant had made claims of unfair dismissal, race discrimination and victimisation which were upheld by the Employment Tribunal which ordered that he be reinstated. In March the following year the Borough informed him that he would not be reinstated. On 1st July 1995, the appellant made a complaint of further discrimination and victimisation in respect of the failure of the Borough to reinstate him. On 10th July 1995, the Tribunal found that it had not been reasonably practical to reinstate him and made an appropriate award of compensation taking into account the failure to reinstate him. The Tribunal communicated its decisions to the parties on 10th and 14th August. Meanwhile, on 31st July, the appellant had lodged a further application to the Tribunal effectively duplicating that of 1st July alleging that the refusal to reinstate was race discrimination and victimisation. It was this application which came before the Tribunal on 23rd February 1996 and was dismissed on the basis of Adekeye.

  160. The problem for the appellant is that his essential complaint remains that he was not reinstated. It is this act which he alleges amounted to discrimination and victimisation. But he has already, pursuant to the earlier decision of the Employment Tribunal, been compensated by the Borough for the failure to reinstate and there is nothing further which can form the basis of a claim for compensation. I therefore agree with your Lordships that the appeal in this case ought to be dismissed.

    The 1995 Act cases

  161. These four cases also raise some problems. Two of them are concerned with the content of references: Kirker and Angel. A third, Bond, concerns an answer given to a mortgage insurance company. The fourth, Jones, is different and relates to the refusal to return property. They all lie close to the limits of what comes within the boundaries of the 'employment field'. Three of them raise arguable cases of victimisation - Kirker, Jones and Angel - and are thus capable of satisfying the discrimination requirement but still need to satisfy the 'employment field' requirement.

  162. Jones is perhaps the simplest case. Mr. Jones complains of the refusal to allow him to have back business cards, his personal property, which were left behind at his workplace when he was dismissed. The connection with his employment is clear and not affected by the delay which occurred. I would therefore allow the appeal and order a remission.

  163. Kirker and Angel are, as I have said reference cases but of a particular kind. They relate to delayed applications for references which were not responded to as favourably as the appellant would have wished. Mr. Kirker complains that his employers declined to answer the question whether they would have re-employed him. The person answering a reference is under a duty to the person making the inquiry to give an honest and truthful answer. If the truth is that the referee would not have re-employed the relevant person, the referee must say so even though it may be fatal to that person's job application to the person making the inquiry. The same considerations apply to the complaint of Mrs. Angel. If the case of either of them is that the former employer should have given a reference which it did not believe to be factually correct and accurate, the complainant will have to be prepared to allege and prove that the former employer would have given other ex-employees references which it knew were inaccurate or incorrect. This is a difficult case for any complainant to make credibly and, if they cannot, they have no credible case that they have been treated less favourably. Since the answers to this question depends upon facts not in your Lordships' possession on the hearing of these appeals I would therefore allow the appeals and order remission as in the case of Rhys-Harper.

  164. Finally in the case of Mrs. Bond. Her case has a longer history behind it. Her complaints centre on two points. One is that Hackney CAB declined to supply her with references in accordance with a draft which she herself had prepared. The other is that they declined to state to her mortgage insurance company that she had been made compulsorily redundant. It was the Bureau's understanding that she had agreed to voluntary redundancy. Following the same logic, I would allow her appeal and order a remission so that the whole matter can be considered afresh.

    CONCLUSIONS

  165. For these reasons, which substantially accord with those of my noble and learned friend Lord Nicholls, I would allow the appeals in all the cases except D'Souza and make orders accordingly for remission to an Employment Tribunal: I would dismiss the appeal in D'Souza.

    Lord Scott of Foscote

    My Lords,

  166. Each of these appeals raises the important question of principle whether discriminatory acts (or omissions) detrimental to an ex-employee but carried out by an ex-employer after the employment has come to an end can give rise to liability under the anti-discrimination legislation at present in force. Although the point of principle arises in each of the appeals, and needs to be considered as a point of principle, the point requires a context for its implications to be fully comprehended. The facts of each appeal have been fully set out in the opinions of my noble and learned friends, Lord Nicholls of Birkenhead and Lord Hope of Craighead. I gratefully adopt their exposition and can confine myself to referring to the essential skeletal details of the respective cases.

    RHYS-HARPER V RELAXION GROUP PLC

  167. The appellant's complaint to the Employment Tribunal began its life as one of sexual harassment and constructive dismissal. She had been accused of misconduct. A disciplinary hearing to enquire into the incident in question was conducted by a Mr. Osborn. His decision was that she was to be dismissed and she was given one week's notice, expiring on 22 October 1998. The decision was formally communicated to her by letter of 15 October 1998. Under Relaxion's internal disciplinary procedures she had the right to appeal against the dismissal decision. She decided to exercise this right and appealed. Her appeal was heard by Mr. Adamson, Relaxion's general manager. In the course of the appeal hearing, on 9 November 1998, the appellant complained that prior to the events that were the occasion of her dismissal she had been the victim of sexual harassment by Mr. Osborn. It is, in my opinion, a fair inference that her complaint about sexual harassment by Mr. Osborn was not a free-standing complaint separate from her appeal against dismissal but was put forward as a reason for impugning Mr. Osborn's dismissal decision.

  168. On 30 November 1998 the appellant received two letters from Mr. Adamson. One letter told her that her appeal against dismissal had failed. The other letter told her that her sexual harassment complaint against Mr. Osborn had been the object of a "full and thorough investigation" and that there was "insufficient evidence to establish a case against Mr. Osborn".

  169. It is of relevance that the latter letter said that "members of staff did confirm that you had reported an incident to them and that you had requested that the information remain private". This comment is consistent with the appellant's evidence to the Employment Tribunal that she had not previously to 9 November 1998 made any formal complaint about the sexual harassment (see the Note of Evidence made by the Chairman of the Tribunal).

  170. The appellant's application to the employment tribunal was made on 18 February 1999. She complained of sexual harassment and unfair dismissal. A preliminary point was taken. The point was whether the application had been made within the prescribed three months. At a preliminary hearing to deal with the point the tribunal concluded (by a majority) that the appellant's employment had continued until 30 November 1998 and that, accordingly, her application was in time. In the course of their extended reasons the tribunal described the appellant's complaint as being "for a series of incidents of sex discrimination which lasted until early October 1998" but took the view that Mr. Adamson's 30 November 1998 decision "could be in itself a continuing discrimination against her" (para 8).

  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, i.e.. 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? 180.

  180. 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 Adekeye (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?

  193. 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 e.g. 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.

  203. This decision and the Directive with which it was concerned apply to sex discrimination cases only. They do not apply to race discrimination or disability discrimination cases. Following the ruling by the Court of Justice, the case returned to the EAT. The EAT held that, in the light of the Court of Justice ruling, the words "a woman employed by him" in s.6(2) of the 1975 Act should be construed, in conformity with the Directive, as covering discrimination against former employees. Morison J declined to follow The Post Office v Adekeye [1997] ICR 110. He held that the Court of Justice ruling had relieved him of the need to do so. In my respectful opinion it had not. There is no difference between the words used in the 1975 Act and those used in the 1976 Act with which Adekeye was concerned. The Court of Appeal decision on the 1976 Act words was just as applicable to the words in the 1975 Act. Moreover, the Directive did not have direct effect in the domestic law of this country. It required, if its terms differed from domestic law, to be implemented in domestic law by primary or subordinate legislation. I, of course, accept that domestic legislation intended to implement a Directive should, if possible, be construed in a manner consistent with the Directive. But the 1975 Act was not passed in order to implement the Directive. It preceded the Directive. It may be that the Government believed that no implementation measure was necessary because the 1975 Act did all that was required to comply with the Directive. But the Court of Appeal decision in Adekeye, coupled with the Court of Justice decision in Coote, showed, in my opinion, that that was not so. I do not think it was open to Morison J to disapply the Post Office v Adekeye.

  204. In my opinion, save for cases where the relationship between employer and employee is still continuing notwithstanding the termination of the employment, the conclusions of the Court of Appeal in Adekeye were correct and should be followed. The 1976 Directive has now been amended by a new Directive, 2002/23/EC, which must be implemented at latest by 5 October 2005. If and to the extent that domestic law is inconsistent with these Directives it is for Government and Parliament to provide the remedy and not, in my opinion, for the Courts to do so.

  205. I must now return to the individual appeals:

    (1) Relaxion Group Plc v Rys Harper

    I would allow the appeal in this case. The appellant complains of sex discrimination in her ex-employer's handling of her appeal against dismissal. A complaint of that character is, in my opinion, covered by s.6(2) of the 1975 Act.

    (2) D'Souza v Lambeth Borough Council

    I would dismiss this appellant's appeal for the reasons given by my noble and learned friend, Lord Nicholls of Birkenhead. The statutory remedy of re-instatement is associated with the statutory alternative of compensation if re-instatement can be shown to be impracticable. It was so shown in proceedings to which the appellant was a party and by which he is bound. There is no room for a complementary claim that the Council's failure to re-instate him was discriminatory.

    (3) Kirker v British Sugar, Angel v New Possibilities NHS Trust and Bond v Hackney CAB

    In each of Kirker v British Sugar, Angel v New Possibilities NHS Trust and Bond v Hackney CAB the alleged acts of discrimination occurred after the relationship between the appellant and his or her ex-employer had come to an end. None of the appellants was, at the time, "a person whom [the alleged discriminator] employs" (s.4(2) of the 1995 Act). I would dismiss these appeals. 

    (4) Jones v 3M Healthcare Ltd

    In Jones v 3M Healthcare Ltd the courts below dismissed the case on the ground that at the time the alleged act of discrimination took place the appellant was no longer a person whom 3M Healthcare Ltd "employs". In my opinion, the appellant was entitled to a reasonable opportunity to remove his belongings, including his business cards, from the premises where he was previously employed. The relationship between him and his ex-employer that had been brought into existence when he entered their employ continued for that purpose during that period. If he had sought to remove his cards during that period and had been prevented from doing so as an act of victimization, the case would in my opinion have been covered by the 1975 Act. But he was dismissed in November 1997, his proceedings for unfair dismissal and disability discrimination were dismissed in August 1998 and he did not request the return of his cards until September 1999. A reasonable time for him to remove his belongings from his ex-employer's premises and to request their return had elapsed long before September 1999. By September 1999 the relationship between the appellant and 3M Healthcare Ltd had long since come to an end. His complaint is not in my opinion covered by the Act and I would dismiss his appeal.

  206. Save that I have formed the view that the applicability of the three Acts should be tied to the continuance of the relationship between employer and employee rather than to the duration of the actual employment, I am in respectful agreement with the views about these appeals and the issues they give rise to that have been expressed by my noble and learned friend, Lord Hope of Craighead.

    Lord Rodger of Earlsferry

    My Lords,

  207. On one level these appeals raise a short point of construction of the words "a woman employed by him" in section 6(2) of the Sex Discrimination Act 1975 ("the 1975 Act"), "a person employed by him" in section 4(2) of the Race Relations Act 1976 ("the 1976 Act") and "a person whom he employs" in section 4(2) of the Disability Discrimination Act 1995 ("the 1995 Act"). In substance, however, the House has to decide whether, as the Court of Appeal have held, in terms of these anti-discrimination Acts it is quite lawful for employers to discriminate against their former employees in circumstances where it would be quite unlawful for them to discriminate against their current employees.

  208. I gratefully adopt the detailed accounts of the facts and issues given by my noble and learned friends, Lord Nicholls of Birkenhead and Lord Hope of Craighead. As they show, allowing for the distinctive features of the 1995 Act, the objectives and, to a greater or lesser degree, the structure and terms of the three Acts are similar. Precisely because of that, it has come to be accepted that an interpretation of the wording of one Act will be a guide to the interpretation of the equivalent wording in another Act. Most notably, in Anyanwu v South Bank Student Union [2001] UKHL 14; [2001] ICR 391, 393, para 2, Lord Bingham of Cornhill said:

    Since the 1976 Act is one of a trio of Acts (with the Sex Discrimination Act 1975 and the Disability Discrimination Act 1995) which contain similar statutory provisions although directed to different forms of discrimination, it is legitimate if necessary to consider those Acts in resolving any issue of interpretation which may arise on this Act.

    True to that spirit, in the hearings before the House counsel referred indiscriminately to authorities on the interpretation of the provisions in all three Acts. Nor did they suggest that any approach other than that indicated by Lord Bingham of Cornhill would be realistic or appropriate, even though, of course, the 1975 Act has to be interpreted in the light of the Equal Opportunities Directive 76/207/EEC, whereas there is at present no equivalent European dimension lying behind the other Acts.

  209. Discrimination can take a variety of forms but all involve treating the person concerned less favourably than others. The law does not attempt to outlaw every form of undesirable discrimination. In Great Britain it concentrates on discrimination on the ground of sex, race and disability and then only in certain circumstances, including the employment field. In Northern Ireland the Fair Employment and Treatment (NI) Order 1998 adds discrimination on grounds of religious belief and political opinion. Before sex and race discrimination were made unlawful, employers would sometimes try to preserve the all-male or all-white character of their workforce by simply refusing to take on women or ethnic minority job applicants. Similarly, employers might refuse to employ disabled people in order to avoid having to make even minor adjustments for them. The three anti-discrimination Acts make such tactics unlawful: section 6(1)(c) of the 1975 Act and section 4(1)(c) of both the 1976 and 1995 Acts. Another form of discrimination was to offer to employ people but on less favourable terms. That is outlawed by paragraph (b) of the same subsections. Moreover, once the person is employed, the employer cannot discriminate by actually affording him less favourable terms of employment: section 4(2)(a) of both the 1976 and 1995 Acts. In the case of sex discrimination the mechanism is different: section 1 of the Equal Pay Act 1970 implies an equality clause into all contracts of employment. Where these provisions are observed, they go a long way towards ensuring that everyone has access to employment and enjoys the same contractual rights. If the employer fails to comply with his obligations under the contract of employment, the employee concerned has the usual remedies for breach of the contract.

  210. Ensuring that all employees in similar positions have the same contractual rights is only a start. Employment is just as much about opportunities as about rights. Not for nothing was the body which was set up under the 1975 Act called the Equal Opportunities Commission. Employees do not have a contractual right to promotion, but they should have an opportunity to earn it. Similarly, certain types of training, with the prospect of a better job, may only be available to employees selected by the employer. The selection should be made fairly. The employer may run a social or recreational club which employees can apply to join. Again everyone should have an equal opportunity to join if they want to. If an employer were free to discriminate in these areas, which do not involve contractual rights as such, then those affected would be marginalised and unable to achieve their full potential. So one important purpose of the anti-discrimination Acts is to prevent employers from exercising their freedom of choice in such matters so as to discriminate against employees on the ground of their sex, race or disability. That is achieved by the provisions which lie at the heart of these appeals. In the case of the 1975 Act the relevant provision is section 6(2), but it is convenient to set out subsection (1) also:

    (1)

    It is unlawful for a person, in relation to employment by him at an establishment in Great Britain, to discriminate against a woman -

    (a)

    in the arrangements he makes for the purpose of determining who should be offered that employment; or

    (b)

    in the terms on which he offers her that employment, or

    (c)

    by refusing or deliberately omitting to offer her employment.

    (2)

    It is unlawful for a person, in the case of a woman employed by him at an establishment in Great Britain, to discriminate against her -

    (a)

    in the way he affords her access to opportunities for promotion, transfer or training, or to any other benefits, facilities or services, or by refusing or deliberately omitting to afford her access to them; or

    (b)

    by dismissing her, or subjecting her to any other detriment.

    As subsection (2) shows, the anti-discrimination Acts are not really concerned with employees' rights under their contracts of employment. So, for instance, where a contract of employment is tainted by illegality, an employee may none the less complain that her employer discriminated against her on the ground of her sex by dismissing her, since both the Equal Treatment Directive and the 1975 Act are designed to provide effective relief in respect of discriminatory conduct "rather than relief which reflects any contractual entitlement which may or may not exist": Hall v Woolston Hall Leisure Ltd [2001] EWCA Civ 170; [2001] ICR 99, 119F - G, para 67 per Mance LJ. As Peter Gibson LJ put it, at p 113B - C, para 46:

    It is the sex discrimination that is the core of the complaint, the fact of employment and the dismissal being the particular factual circumstances which Parliament has prescribed for the sex discrimination complaint to be capable of being made.

    Mummery J had made the same point when, in giving the judgment of the EAT in Leighton v Michael [1996] IRLR 67, 69, para 29, he said that the claim of sex discrimination "does not involve enforcing, relying on or founding a claim on the contract of employment." Employees invoke the Acts not to enforce their contractual rights but to enforce their statutory rights not to suffer discrimination "in the employment field", inter alia in respect of the opportunities to which the employer affords access.

  211. Therefore, although being employed is one of the keys which unlocks access to the rights and remedies conferred by the anti-discrimination Acts, to a considerable extent those Acts are actually concerned with discrimination in relation to the various kinds of opportunities that employees may enjoy in addition to any contractual rights. Of course, not even all contractual rights end on the termination of employment: an employee may still have both rights and obligations under the contract. Most obviously, an employee may have a right under his contract to be paid a pension or to continue to enjoy free medical insurance, while he may also be bound by a restrictive covenant in the contract. Not only an employee's rights and obligations under the contract of employment can continue after the employment itself comes to an end: an employer may continue to afford his former employees opportunities to enjoy some of the additional non-contractual benefits, such as access to sports or other recreational and social facilities. Since the anti-discrimination Acts are not tied to contractual rights and obligations, there is in principle no reason why the Acts should cease to have effect in respect of these continuing opportunities. I therefore have difficulty in seeing why Parliament, however cautious its approach, would ever have intended that it should be lawful for an employer to discriminate against a former employee in these respects. The idea, for instance, that Parliament intended that, after the 1976 Act was in force, an employer should still be able to bar a black former employee from entering the employer's social club while allowing white former employees to continue to enjoy the facility strikes me as untenable.

  212. The same applies to the provision of references. In some cases the employee may have a contractual right, whether express or implied, to be supplied with a reference. But even where that is not so, since an employee or former employee will often stand little chance of getting a new job without a reference, an employer will recognise at least a moral duty to provide one: Spring v Guardian Assurance Plc [1995] 2 AC 296, 335C per Lord Slynn of Hadley. And in providing the reference he owes a duty of care to his employee or former employee. Again, I have the greatest difficulty in believing that Parliament could have intended that it should be unlawful for an employer to discriminate in giving or withholding references for existing employees but perfectly lawful for him to do so in the case of ex-employees. Parliament often has to draw lines - and indeed does so explicitly in various ways in the anti-discrimination Acts, e g by limiting their application in the case of domestic employment. It is not hard to see the reason for that. It is very much harder to see why Parliament would have chosen to draw an arbitrary line through the continuing effects of the employment relationship rather than leave the ban on discrimination to expire as and when those effects themselves were spent. In particular, I am not impressed by the spectre of the supposed difficulties for employers if proceedings could be brought for discrimination in failing to provide a reference or in providing an unsatisfactory reference some time after the employee had left his employment. If such proceedings were brought, there is little reason to suppose that the difficulties for the employer would be significantly greater than those entailed in defending a negligence claim in relation to a request for a reference made at about the same time. And, of course, in any such proceedings the applicant will have to show that the former employer treated him or her less favourably than other former employees in similar circumstances.

  213. As an argument against holding that the Acts make it unlawful to discriminate against former employees, it is pointed out - correctly - that the pre-legislative materials make no mention of discrimination against them. Moreover, it is said, if the draftsman of section 6 of the 1975 Act, for instance, had intended to cover former employees, he might have been expected to do so specifically in a separate subsection (3), to mirror subsection (1) dealing with job applicants. These arguments, which are interlinked, really amount to saying that the lack of any positive sign that Parliament considered the position of former employees shows that it did not in fact intend to make discrimination unlawful in the case of former employees. So in Rhys-Harper v Relaxion Group Plc [2001] EWCA Civ 634; [2001] ICR 1176 the Court of Appeal were correct to interpret subsection (2) as they did.

  214. At first sight the argument may appear quite persuasive, on mature reflection less so. For the reasons I have given, I do not find the lack of discussion of the particular position of former employees significant. What would have been significant, not to say remarkable, would have been any hint that the government of the day, or Parliament itself, ever contemplated that it was to remain lawful for employers to discriminate against former employees on, say, racial grounds. So far as the drafting of the sections is concerned, if discrimination against job applicants was to be outlawed, a separate provision was obviously necessary since on no view can they fall within subsection (2). That subsection is drafted to deal with the very different situation of people who have gone a step further and have actually been employed. Former employees are different from job applicants in this respect. Some of the kinds of discrimination listed in subsection (2) - e.g. failing to offer opportunities for promotion or dismissing someone - are such that only a current employee can be subjected to them. Others could apply to both current and former employees. It is not suggested that there is some other class of conduct by employers that would have to be made unlawful solely in the case of former employees. Therefore, the provision as drafted, making it unlawful for employers to discriminate against employees in various ways, could in principle operate perfectly satisfactorily in respect of former employees without there being any need either to discuss their position separately or to make separate provision for them in a further subsection. Everything thus depends on whether the wording of the provision in subsection (2) is capable of covering both current and former employees - which is simply the point at issue.

  215. The words in section 6(2) of the 1975 Act which are said to confine the provision to current employees are "a woman employed by him at an establishment in Great Britain". They comprise the noun phrase "a woman" and the non-finite clause "employed by him at an establishment in Great Britain" which modifies the noun phrase. In that clause "employed" is a passive participle and, as such, it is inherently ambiguous. Discounting any other possibility, the words may be the equivalent of "a woman who is employed by him at an establishment in Great Britain" or "a woman who is or was employed by him at an establishment in Great Britain". One cannot tell how the participle is to be interpreted from looking at these words alone: it must be interpreted in the context of the provision as a whole. Often the wider context in which the participle is used will point definitely one way or the other. So, for instance, if I say "John is very worried about productivity in his firm and is inviting everyone employed by him to a meeting to discuss improvements", the obvious meaning is that the invitation is addressed to current employees. On the other hand, sometimes the context may not fully resolve the matter. If I say "John, who has been in business for 20 years, is inviting everyone employed by him to a party to celebrate", someone listening to me might not be sure what to expect but he would not be unduly surprised to find former as well as current employees at the party. Similarly, in my view, the context of the words within the legislative sentence in section 6(2) leaves the matter open: looked at merely in that context, the passive participle could be interpreted in either way. Although most of the opportunities listed in paragraph (a) may be relevant only to current employees, the examples that I have already given are enough to show that the paragraph could sensibly apply to the situation of former employees, while in paragraph (b) the notion of "subjecting someone to a detriment" is so broad that, indisputably, it could apply to refusing a reference to a former employee, for instance. Unlike section 6(2), section 4(2) of the 1976 Act uses the word "employee" but, as Pill LJ noted in Rhys-Harper v Relaxion Group Plc [2001] ICR 1176, 1182, para 13, the presence or absence of that term cannot be critical to the interpretation of these provisions. In what is largely a matter of impression, I am respectfully unable to share the view of Peter Gibson LJ in Post Office v Adekeye [1997] ICR 110, 118B that in section 4(2) of the 1976 Act the crucial words can only mean "in the case of a person who is employed by him". Since that is not the only possible meaning in either the 1975 or 1976 Act, the wider considerations discussed above persuade me that the provisions should be interpreted as making it unlawful to discriminate against former employees as well as current employees if there is a substantive connexion between the discriminatory conduct and the employment relationship. In other words the former employer must discriminate qua former employer. I find nothing in the other provisions on employment in the statutes to invalidate that interpretation. Despite the difference in language, there is no indication that Parliament intended the 1995 Act to be different in this respect. Therefore, given the similarity of the general aims of the anti-discrimination Acts, I would interpret the words "a person whom he employs" in section 4(2) in the same way. The House is not called on in these appeals to decide whether the duty in section 6 of that Act also applies in the case of former employees.

  216. I should add that, even if I had not been disposed to construe section 4(2) of the 1976 Act in this way, I should in any event have concluded that the decision in Post Office v Adekeye was wrong on the basis of the narrower line of reasoning adopted by my noble and learned friend, Lord Scott of Foscote. Unfortunately, in an organisation where racial discrimination is practised an employee is just as liable to encounter it in the internal appeal as in the original dismissal. Reluctantly, the Court of Appeal felt obliged to hold, however, that, while it would have been unlawful for the Post Office to discriminate against Ms Adekeye when dismissing her, it would have been perfectly lawful for them to do so when determining her internal appeal from that self-same dismissal. The result is so startling as in itself to cast doubt on the construction. And indeed, even on a fairly strict construction, it would not have been difficult to regard the applicant as "a person employed by" the Post Office in terms of section 4(2). After all, at the time of the internal appeal the employment relationship was not severed irrevocably: if the appeal had succeeded, the applicant would have been reinstated as an employee. Only a rather literal, as opposed to a purposive, reading of the words "a person employed by him" would lead to the conclusion that someone in that twilight zone was no longer "employed" and had lost her rights under section 4(2). For the reasons I have given, however, I prefer to approach the matter on the footing that, even if Ms Adekeye was indeed to be regarded as a former employee at the time of her internal appeal, she was still within the scope of section 4(2).

  217. Compelling support for the interpretation of section 6(2) of the 1975 Act which I prefer is to be found in the Community law background. The 1975 Act, which was passed while the Equal Treatment Directive was in preparation, was not subsequently amended when the directive came into force. In that situation, of course, as was explained by the Court of Justice in Marleasing SA v La Comercial Internacional de Alimentación SA C-106/89 [1990] ECR I-4135, 4159, para 8, when interpreting the 1975 Act, any tribunal or court in this country

    is required to do so, so far as possible, in the light of the wording and the purpose of the directive in order to achieve the result pursued by the latter and thereby comply with the third paragraph of Article 189 of the Treaty.

    In Coote v Granada Hospitality Ltd (No 2) [1999] ICR 942 the applicant first brought a claim against her employers alleging that they had discriminated against her on the ground of her sex by dismissing her because she was pregnant. That claim was settled but she later brought further proceedings complaining that she was unable to obtain new employment because, in retaliation for her previous proceedings against them, her employers had consistently failed to provide references when asked to do so. More particularly, her complaint was that, in terms of sections 4(1) and 6(2)(b) of the 1975 Act, it had been unlawful for her employers to discriminate against her by subjecting her to the detriment of failing to provide her with references when they would have provided them to persons who had not previously complained of sex discrimination. For present purposes what matters is that, in order to succeed, the applicant, who was no longer employed by the employers at the time of the alleged discrimination, had none the less to be regarded as "a woman employed by" Granada Hospitality for the purposes of section 6(2). Consideration of this point in turn raised an issue as to the effect of the Equal Treatment Directive which the EAT referred to the Court of Justice in November 1996, just a week after the Court of Appeal had given judgment in Post Office v Adekeye.

  218. Article 5(1) of the Equal Treatment Directive provides:

    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 grounds of sex.

    Articles 6 and 7 are in these terms:

    6.

    Member States shall 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 articles 3, 4 and 5 to pursue their claims by judicial process after possible recourse to other competent authorities.

    7.

    Member States shall take the necessary measures to protect employees against dismissal by the employer as a reaction to a complaint within the undertaking or to any legal proceedings aimed at enforcing compliance with the principle of equal treatment.

    Despite the specific reference to retaliation by way of dismissal in article 7, in Coote v Granada Hospitality Ltd C-186/97 [1999] ICR 100, 113, paras 27 and 28, the Court of Justice held that, having regard to the objective of the directive and the fundamental nature of the right to effective judicial protection,

    article 6 of the Directive 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 employment relationship has ended, refuses to provide references as a reaction to legal proceedings brought to enforce compliance with the principle of equal treatment within the meaning of the Directive.

    The EAT then had to apply the guidance given by the Court of Justice to the interpretation of section 6(2) of the 1975 Act. They were faced with an argument by the employers that the proper construction of that provision had in effect been settled by the decision of the Court of Appeal in Adekeye on the interpretation of section 4(2) of the 1976 Act. The EAT rejected that argument, in the end because they considered that they had to apply the decision of the Court of Justice. Having examined the language of section 6(2), and in order to achieve the result pursued by article 6 of the directive as interpreted by the Court of Justice, the EAT found it possible to hold, and did indeed hold, that the words "a woman employed by him" were apt to cover a former employee, such as the applicant, complaining of victimisation: Coote v Granada Hospitality Ltd (No 2) [1999] ICR 942. The employers did not appeal.

  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.

  221. For these reasons, and for those given by Lord Nicholls of Birkenhead, I respectfully agree with his interpretation of the relevant provisions in the three Acts. I also agree both with the way he would apply that interpretation in the individual appeals and with what he says about the separate issue in D'Souza v London Borough of Lambeth. I would accordingly refuse that appeal but allow the others.


Cases

Post Office v Adekeye [1997] ICR 110; Adekeye v Post Office [1995] ICR 540; Nagarajan v Agnew [1995] ICR 520; Nagarajan v Agnew in [1994] IRLR 61; Coote v Granada Hospitality Ltd [1999] ICR 100; Anyanwu v South Bank Student Union [2001] 1 WLR 638; Jones v Tower Boot Co Ltd [1997] ICR 254; De Souza v Automobile Association [1986] ICR 514; Garland v British Rail Engineering Ltd [1983] 2 AC 751; Rhys-Harper v Relaxion Group Plc [2001] ICR 1176; D'Souza v London Borough of Lambeth [2001] EWCA Civ 794; D'Souza v London Borough of Lambeth (EAT, unreported, 27 June 2000); Kirker v British Sugar Plc [2002] ICR 1124; Litster v Forth Dry Dock and Engineering Co Ltd [1990] 1 AC 546; Webb v Emo Air Cargo (UK) Ltd [1983] ICR 175; Marleasing SA v La Comercial Internacional de Alimentacion SA (Case C-106/89) [1990] ECR I-4135; Coote v Granada Hospitality Ltd (Case C-185/97) [1999] ICR100; Burton v British Railways Board (Case 19/81) [1982] ICR 328; Spring v Guardian Assurance Plc [1995] 2 AC 296; Anyanwu v South Bank Student Union [2001] UKHL 14; [2001] ICR 391; Hall v Woolston Hall Leisure Ltd [2001] EWCA Civ 170; [2001] ICR 99; Leighton v Michael [1996] IRLR 67

Legislations

Sex Discrimination Act 1975: s.1, s.2, s.4, s.6, s.8, s.62, s.63, s.65, s.76

Sex Discrimination (Indirect Discrimination and Burden of Proof) Regulations 2001, (SI 2001/2660): Reg.3

Equal Pay Act 1970

Race Relations Act 1976: s.1, s.2, s.4, s.53, s.54, s.56

Race Relations (Amendment) Act 2000

Disability Discrimination Act 1995: s.1, s.4, s.5, s.6, s.8, s.55, s.63

Disability Discrimination Act 1995 Code of Practice

Employment Protection (Consolidation) Act 1978: s.57, s.68, s.69, s.71

Employment Rights Act 1996: s.112, s.113, s.114, s.117

Equal Treatment Directive (Council Directive No 76/207/EEC): Art.1, Art.5, Art.6, Art.7

Race Directive (Council Directive 2000/43/EEC)

EEC Treaty: Art.119, Art. 189

EC: Art.141, Art.249

European Convention for the Protection of Human Rights and Fundamental Freedoms: Art.6

Authors and other references

White Paper Equality for Women (Cmnd 5724), Sept 1974

Current Law Statutes


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