England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
(HIS HONOUR JUDGE COLLINS PRESIDING)

		Royal Courts of Justice Strand, London, WC2A 2LL
		Thursday 3rd May 2001

LORD JUSTICE PILL:

1. This is an appeal against the decision of the Employment Appeal Tribunal, His Honour Judge Collins presiding, whereby an appeal by Relaxion Group plc ("the employers") against a decision of an Employment Tribunal given on 16 April 1999 was allowed. The appellant is Ms Christine Rhys-Harper ("the employee") who was in the employment of the employers from November 1997 until the Autumn of 1998.
2. Other issues were contested before the tribunals but the sole issue before the Court is whether the employment tribunal had jurisdiction to consider a claim brought under section 6 of the Sex Discrimination Act 1975 ("the 1975 Act"). (It is accepted by the employers that the case must in any event be remitted to consider the employee's application to extend time, on a separate claim, a point argued below but not determined.) The employee complained that she had been subjected to sexual harassment by the manager while she was employed at the Helston Sports Centre. She complained, however, only after her employment had been terminated. The issue is whether an employment tribunal has jurisdiction under section 6 of the Act to consider a complaint about sexual harassment which is alleged to have occurred during the relevant employment but when the complaint about that conduct was not made until after the employment had terminated.
3. Section 6(2) of the 1975 Act provides: "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 detriment."

4. On 12 October 1998, the employers held a disciplinary hearing at which allegations against the employee of misconduct in relation to her behaviour towards customers were made. By letter dated 15 October, the employee was dismissed. An appeal against the dismissal was unsuccessful. On 9 November, she complained of sexual harassment by the manager of the centre while she was employed there. This was investigated by the employers who wrote on 13 November to state that they had carried out a full and thorough investigation and that the allegation was unsubstantiated. It was accepted on behalf of the employers at the EAT that "a failure to vindicate a justified complaint of sexual discrimination could amount to detriment for the purposes of the Act". It was held by the EAT that the letter of 12 October should be construed as providing for termination of the contract of employment no later than 22 October 1998 and there is no appeal against that finding. Thus the complaint of sexual discrimination, based on harassment, was made after the contract had terminated. It was a separate free-standing complaint.
5. For the appellant, Miss Gower submits that the expressions "woman employed by him" in section 6(2) of the 1975 Act should be construed as including a woman "who has been employed" so that a claim may be made by a former employee about discrimination during the employment. That would give effect to the Equal Treatment Directive (76/207/EEC) and Article 141 of the Treaty of Rome. An employee may be reluctant to come

forward during her employment and, to provide protection during the employment, she must have the opportunity to bring a complaint and seek a remedy after the employment has ended.

6. It is submitted that the decision of this Court in Post Office v Adekeye [1997] ICR 110, a decision under the Race Discrimination Act 1976, should not be followed in cases of sex discrimination. In any event, the decision of the European Court of Justice in Coote v Granada Hospitality Ltd [1999] ICR 100 requires or at least permits the Court to depart from Adekeye. An underlying principle that there is no cut-off point when the employment comes to an end has been established, it is submitted. Miss Gower relies upon the view expressed by Morison J as President of the EAT in Coote v Granada (No 2) [1999] ICR 945, at 950, that "the supremacy of decisions of the Court of Justice would be undermined were a lower court to feel obliged to follow a higher court's decision in preference to giving effect to what the Court of Justice has determined". In the present case, the EAT, His Honour Judge Collins presiding, stated:

"In our judgment the effect of the Coote case [in the ECJ] is to depart from the Adekeye v The Post Office reasoning in cases where the allegation is one of victimisation under section 4 [of the 1975 Act] for the reasons given by the European Court of Justice. But in other cases, such as the present one, we ought to follow the decision of the Court of Appeal in Adekeye v The Post Office".

7. In Adekeye, the leading judgment was given by Peter Gibson LJ with whom Hirst LJ and I, in short judgments, agreed. Peter Gibson LJ set out the analysis of section 4(2) of the 1976 Act, the equivalent of section 6(2) of the 1975 Act, conducted by the EAT, Knox J presiding, in Nagarajan v Agnew [1995] ICR 520. Peter Gibson LJ expressed agreement with Knox J and concluded that "giving the words 'in the case of a person employed by him' their ordinary and natural meaning in their context, these words mean, and can only mean, "in the case of a person who is employed by him". In London Borough of Lambeth v D'Souza (transcript 27 June 2000) the EAT, Morison J presiding, considered themselves bound by Adekeye upon a claim under the 1976 Act.
8. The reference to the ECJ in Coote was made when proceedings by the applicant against the respondent employer alleging sex discrimination were settled and the applicant left the employer's employment by mutual consent. Having sought further employment elsewhere without success, she brought further proceedings against her former employer in which she alleged that the difficulties she had had in obtaining new employment were the result of the employer's refusal to supply a reference to an employment agency, allegedly by way of reprisal for her previous allegation of sex discrimination. Two questions were posed and the Advocate General answered them as follows:

"(1) the provision of references for employees by an employer is covered by the prohibition of any discrimination on grounds of sex laid down by Council Directive (76/207/EEC). In that connection, it is irrelevant whether the references were in fact refused during the period of employment or after its termination or whether the employer decided on the refusal before or after the termination of the period of employment. (2) Directive (76/207/EEC) does not, however, require member states to introduce into their national legal systems such measures as are necessary to enable employees to bring legal proceedings against former employers who have refused to provide references for them, where that refusal constitutes retaliation for legal proceedings brought by the employee against the employer with a view to enforcing compliance with the requirement of equal treatment for men and women."

In the course of his opinion, Advocate General Mischo stated that "it would be particularly inappropriate and wholly contrary to the spirit of the Directive for the employee to be deprived at that moment [termination of the contract of employment] of the protection which the Directive is intended to afford on the ground that the discrimination is the work of a former employer with whom there is no longer any contractual relationship".

9. The Court, though not referring to the opinion of the Advocate General, approached the question in a different way:

"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 provided references as a reaction to proceedings brought to enforce compliance with the principle of equal treatment within the meaning of the Directive."

The Court found in favour of the applicant, not on the first of the grounds advised by the Advocate General, but on the second upon which he had advised against her. The Court stated, at paragraph 20:

"On this point, it should be noted that article 6 of the Directive requires member states to introduce into their national legal systems such measures as are necessary to enable all persons who consider themselves the victims of discrimination 'to pursue their claims by judicial process'. It follows from that provision that the member states must take measures which are sufficiently effective to achieve the aim of the Directive and that they must ensure that the rights thus conferred can be effectively relied on before the national courts by the persons concerned … ."

10. Following consideration of Article 6 and decisions upon it, the Court stated:

"24. The principle of effective judicial control laid down in article 6 of the Directive would be deprived of an essential part of its effectiveness if the protection which it provides did not cover measures which, as in the main proceedings in this case, an employer might take as a reaction to legal proceedings brought by the employee with the aim of enforcing compliance with the principle of equal treatment. Fear of such measures, where no legal remedy is available against them, might deter workers who consider themselves the victim of discrimination from pursuing their claims by judicial process, and would consequently be liable seriously to jeopardise implementation of the aim pursued by the Directive.

25. In those circumstances, it is not possible to accept the United Kingdom Government's argument that measures taken by an employer against an employee as a reaction to legal proceedings brought to enforce compliance with the principle of equal treatment do not fall within the scope of the Directive if they are taken after the employment relationship has ended.

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 as a reaction to legal proceedings brought to enforce compliance with the principle of equal treatment within the meaning of the Directive."

11. I agree with the submission of Mr Reade, for the employers, that the ECJ dealt with the issue before it in a narrow and specific way. The Court did not consider the issue now before this Court. Neither the case of Adekeye nor the point it decided on the 1975 Act were mentioned by the Court, notwithstanding the almost identical wording of the equivalent section in the 1976 Act. The decision of the ECJ is limited to ensuring that there is an effective remedy for persons who consider themselves wronged by measures taken by an employer as a reaction to proceedings brought by employees to enforce compliance with the principle of equal treatment. They must have a remedy if they are victimised after the employment has terminated. The decision does not bear upon the question whether a claim based on an act of discrimination alleged to have occurred during the period of employment can be the subject of complaint after the employment has ended.
12. In Coote (No 2), it was conceded by counsel for the employer that Adekeye was not binding in relation to the 1975 Act. That notwithstanding, Morison J stated, at p 949A that "It was plainly Parliament's intention that they should be construed in the same way. We are instinctively reluctant to adopt an argument which leads to two different results". I respectfully agree with that approach. Moreover, it now has the powerful support of Lord Bingham of Cornhill who stated, in Anyanwu v South Bank Student Union & Anr 22 March 2001, 2001 UK HL/14, paragraph 2:

"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."

13. It is right to acknowledge that in Adekeye, Peter Gibson LJ, at p 118B, as a supporting reason for his construction of the relevant words in section 4(2) of the 1976 Act, referred to the expression 'that employee', which appears in the opening words of the sub-section where the word 'her' appears in the 1975 Act, as set out above. Peter Gibson LJ stated that the expression "'that employee' was suggestive of a present and not a past employee". That appears to have been a subsidiary point however and its absence in the present case is not, in my judgment, critical to the decision upon the construction of 6(2) of the 1975 Act. In the 1976 Act, it was appropriate to say "that employee" because the employee might be male or female. As a matter of drafting, the word "her" is plainly preferable to "that woman" in section 6(2) and does not lead to the construction of section 6(2) for which the employee contends.
14. Having stated that the two Acts should be construed in the same way, Morison J in Coote (No 2) went on to consider the reasoning in Adekeye, as he understood it, before reaching the conclusion that, in the light of the judgment of the ECJ in Coote, it need not be followed. I have expressed the view that the decision of the ECJ does not cover the present issue. Morison J stated, at p 950D that "the decision of the Court of Justice in the present case determines the argument to which Peter Gibson LJ was referring". That was a reference to Peter Gibson LJ's rejection of a submission by counsel, based on Article 5(1) of the Equal Treatment Directive, which provides for equal treatment with regard to working conditions for men and women. Peter Gibson LJ rejected the submission that Article 5(1) of the Directive (which was not considered by the Court of Justice in Coote) could be transposed into the context of racial discrimination when considering the effect of the 1976 Act. Peter Gibson LJ held, and I agree, that the Equal Treatment Directive had "no application whatsoever to the Act of 1976". With respect, I cannot agree with Morison J that the decision of the Court of Justice in Coote overrules, or even bears upon, the reasoning of Peter Gibson LJ on this point. It was the reliance upon Article 5 of the Equal Treatment Directive and its transposition into the context of racial discrimination that Peter Gibson LJ was rejecting. He did not reject all reference to the 1975 Act and Community materials as Morison J, at p 950B in Coote (No 2), understood him to have done.
15. I accept that, in relation to some of the provisions of the 1975 Act, an approach different from that under the 1976 Act may be necessary by reason of the existence and effect of the Equal Treatment Directive. The two statutes may pull in different directions. That does not in my judgment extend to treating differently section 6(2) of the 1975 Act and section 4(2) of the 1976 Act. The wording of the two sections is substantially the same. The impact upon potential claimants is substantially the same, whether the mischief concerned is that of sex discrimination or racial discrimination, and the two sub-sections should be construed in the same way.
16. Miss Gower seeks to rely on Article 141 of the Treaty which provides, in paragraph 1, that "each member state shall ensure that the principle of equal pay for male and female workers for equal pay or work of equal value is applied". A broad view has been taken of the word "pay" by the ECJ, for example, in Garland v British Rail Engineering Ltd [1982] ICR 420 and Kowalska v Freie und Hansestadt Hamburg [1992] ICR 29 (severance grant). In Garland, consideration was given to a scheme whereby rail employees were given more extensive concessionary travel facilities after their retirement than were female employees. It was held that the facilities were to be treated as "pay" within the meaning of what is now Article 141 and the difference was held by the ECJ to constitute discrimination within the meaning of the Article. However, the issue before the English Courts was whether the difference could be ignored under what was then section 6(4) of the 1975 Act, which provided that sub-section (2) did not apply to provision in relation to death or "retirement".
17. Miss Gower accepts that the present point was not considered in Garland but submits that, by way of analogy, if post-employment "pay" can be the subject of discriminatory treatment, harassment in the course of employment ought to be subject to post-employment complaint. The analogy is not in my judgment sound. Article 141 does not extend to a complaint of harassment and the cases under Article 141 do not in any event bear upon the present issue of statutory construction.
18. Nor, in my judgment, does the wording of Article 5 of the Directive bear upon the present issue. It provides that "application of the principle of equal treatment with regard to working conditions, including the conditions governing dismissal, means men and women shall be guaranteed the same conditions without discrimination on grounds of sex". Nothing in the Article suggests that provision is to be made for post-employment complaints about conduct during employment
19. In my judgment the EAT was correct to follow Adekeye in the conclusion reached and, save as to the point upon extension of time, I would dismiss this appeal.

LORD JUSTICE BUXTON:

20. I gratefully adopt the account of the facts and of the progress of the case that is set out by my Lord, Pill LJ. Like him, I would dismiss this appeal.
21. In his speech in Anyanwu v South Bank Students Union [2001] 1 WLR 638 at para 2 Lord Bingham of Cornhill said:

"Since the [Race Relations Act] 1976 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 that may arise on this Act".

That approach is, with respect, reinforced in the case of the Sex Discrimination Act 1975 and the Race Relations Act 1976 by the latter Act having recognised in its long title its relationship to, and the need for it to conform with, the 1975 Act.

22. Lord Bingham's observations were not available during argument in this appeal, and I would not therefore act directly on them without affording the opportunity for further argument. But they strongly reinforce an argument that was squarely before this court, that when Parliament passes two Acts within a year of each other, which deal with closely related fields, commonsense suggests, and compellingly suggests, that a particular form of words used in the one Act was meant to mean the same as that same form of words used in the cognate Act. It follows from that proposition that a decision by a court in relation to the meaning of the words used in the one Act carries the same authority in relation to the same words used in the cognate Act as it does in relation to those words as used in the Act that the court's judgment actually addressed.
23. That was not the view taken by the EAT in Coote. Counsel in that case conceded, as recorded by the EAT at [1999] ICR p 948G, that the decision of this court in Adekeye, on section 4(2) of the 1976 Act, was not binding in relation to the construction of the almost identical terms of section 6(2) of the 1975 Act. That concession caused the EAT to be led by counsel into a detailed critique of the reasoning of this court in Adekeye. That concession should not have been made, and that investigation should not have been embarked upon. That is because, for the reasons indicated in paragraph 3 above, the decision of this court on the meaning of section 4(2) of the 1976 Act bound the EAT as to the meaning of substantially the same words used in section 6(2) of the 1975 Act; as it equally binds us.
24. That said, I for my part do not find it necessary to give further detailed consideration to the judgments in Adekeye. However, in the light of the argument before us two comments are required.
25. First, with great respect I find entirely persuasive the conclusion of Peter Gibson LJ at [1997] ICR p 117D-F that when one reads as a whole the words equivalent to those used in section 6(2)(a) of the 1975 Act it is inescapable that what is addressed is events occurring during the actual course of employment. The rule reads:

"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 in the way he affords her access to opportunities for promotion, transfer or training, or to any other benefits, facilities or services."

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 were 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. The EAT in Coote misunderstood the force of this argument, by pointing to certain post-employment events, such as the giving of a reference or the use of sports facilities, that could, linguistically, be described as benefits. However, Peter Gibson LJ's conclusion, agreeing with Knox J from whom the appeal was brought, was that strong indications of post-contract activity within the events listed, going beyond such 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: see [1997] ICR at p 117G. I respectfully agree.
27. Second, the EAT misunderstood Peter Gibson LJ's references to the relationship between the 1975 Act and the 1976 Act, a misunderstanding that equally permeated the argument before us. This court in Adekeye was faced with the contention that even if the 1976 Act on its true construction did not apply to after-employment events, the same expressions in the 1975 Act had to be so construed, in order to bring the 1975 Act into compliance with the requirements of Directive 76/207. Since that was the meaning of those words in the 1975 Act, it must be the meaning of those same words as used in the 1976 Act. Peter Gibson LJ rejected that argument. He was not persuaded that that was the effect of Directive 76/207 in relation to the 1975 Act; but in any event he rejected the line of reasoning because it produced a meaning of the 1976 Act that it otherwise could not bear. What Peter Gibson LJ conspicuously did not do was to reject the basic premise of counsel's argument, that the 1975 Act and the 1976 Act should be construed together. If the EAT held what counsel in our case submitted, that Peter Gibson LJ's rejection of the way in which the 1975 Act was sought to be used in Adekeye indicated a general requirement to read the two Acts separately, then I have to say that it was mistaken.
28. I therefore conclude, on the authority of Adekeye, that section 6(2) of the 1975 Act does not, on its true construction, extend to acts or events occurring after the termination of employment.
29. Faced with this difficulty, Miss Gower opened up a different line of attack: that EU authority, construing both article 119 (now article 141) of the Treaty of Union and Directive 76/207, required section 6(2) to be read so as to grant relief in respect of post-termination events. In assessing these arguments, it is necessary always to bear in mind what Lord Keith of Kinkel said in Webb v Emo [1993] ICR 175 at p186:

"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"

30. The important part of that guidance, for present purposes, is its last phrase. We have seen that in this case the meaning of the domestic legislation is clear, and clearly excludes after-termination events. Any other interpretation would therefore appear to involve the distortion that Lord Keith warned against. It may therefore well be that even if the Community instruments referred to did require member-states to provide relief in relation to after-termination events, that relief would have to be sought within the national legal order through means other than the construction of section 6(2). The point does not, however, in the event arise, since both of the arguments based on Community instruments are ill-founded.
31. Miss Gower first took us to Garland, and said that in that case the Court of Justice and the House of Lords had recognised an entitlement under the 1975 Act to a post-retirement benefit, in the shape of a travel concession that had been analysed as "pay" in the terms of article 119. However, the Court of Justice did no more than decide that article 119 applied to travel concessions in connnexion with employment. In so deciding it applied, at paragraph 5 of its judgment, the definition of the Court of Justice in Case 80/70 [1971] ECR 445 at 451 (Defrenne):

"the concept of pay contained in the second paragraph of article 119 comprises any other consideration, whether in cash or kind, whether immediate or future, provided the worker receives it, albeit indirectly, in respect of his employment from his employer"

32. The connexion with the employment is here stressed. The analysis does not touch at all a case such as the present, where what is sought is relief in relation to the handling of a complaint raised only after the termination of employment. And the House of Lords, in accommodating the ruling of the Court of Justice within the 1975 Act, did no more than adopt an interpretation of the then section 6(4) which granted relief under the Act in respect of what was described as "a privilege that has existed during employment and is allowed by the employer to continue after retirement".
33. All this is far away from the right contended for in the present case. The House of Lords in Garland did not pass on the general issue of the construction of section 6(2), and it is highly doubtful whether, if they had done so, they would have thought that it was necessary, or even possible, to construe it in the terms sought by the present appellant. Garland accordingly does not assist in the present case.
34. Secondly, Miss Gower argued that the deficit identified by Peter Gibson LJ in Adekeye, of a lack of authority on the construction of Directive 76/207, had now been supplied by the judgment of the Court of Justice in Coote. Article 6 of the Directive requires member states to take measures to enable persons complaining of a failure to grant them the protection afforded by article 5 to pursue their claims by judicial process; and article 5.1 provides 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 grounds of sex."

35. In Coote the applicant, after the termination of her employment, was refused a reference, she contended as an act of victimisation because she had brought proceedings against her employer for dismissing her because she was pregnant. The Court of Justice ruled, in paragraph 28 of its judgment, [1999] ICR at p113, 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 as a reaction to legal proceedings brought to enforce compliance with the principle of equal treatment within the meaning of the Directive."

36. On that authority, Miss Gower argued, a remedy must equally be provided to her client. She had complained of unequal treatment in regard to her employment conditions, by an act of sexual harassment directed at her as a woman. Her requirement that, post termination, that complaint be taken seriously was no different from Ms Coote's requirement, equally post termination, that she should not be unfairly denied a reference.
37. I have considerable doubt about whether the matter of which the appellant originally complained can be said to be a matter of her working "conditions" in the sense in which that expression is used in Directive 76/207. However, I would not rest my judgment on such doubts, quite apart from that being a question that could hardly be resolved without a reference to the Court of Justice. Rather, it is the limited nature of the issue addressed in Coote that prevents its acting as a guide to the resolution of the present case; and, much more, deprives it of the conclusive effect that must be the least that is required before the natural meaning of an English statute is abandoned in the face of the need to comply with Community law.
38. The Court of Justice in Coote was faced with an argument that events occurring after the termination of employment were not covered by the Directive. It rejected that argument, not in general terms, but on the basis that where an employee complains by judicial process of events that had occurred during the employment, that judicial process will only be effective, as general Community law requires, if employees are not victimised for taking the process. In English terms, the reasoning is not unlike that in the contempt of court cases that protects persons from being persecuted for assisting in litigation: see e.g. A-G v Butterworth [1963] 1 QB 696. Insofar as the reasoning refers to after-employment events, it does so only where those events relate to, and are parasitic upon, action taken in respect of events that occurred during employment. And that is because the after-employment victimisation does not have to be, in itself, an act of unequal treatment, but simply a punishment for complaining of an act of unequal treatment: as section 4 of the 1975 Act, effectively incorporating the principle identified in Coote, recognises.
39. Miss Gower said that the present case was one of after-event victimisation, so that even if Coote did not have the wide meaning claimed for it, it must apply by analogy in the particular facts of this case. I do not agree. In the present case, the appellant alleges, not any interference by the employer with the judicial process, but solely a failure on his part properly to investigate her complaint. That complaint is not in relation to interference with her right to come to court, but in relation to what is alleged to be an act of discrimination separate from the original harassment. It is plainly different in its structure and in the nature of what it complains of from the complaint in Coote. The argument based on Coote cannot be used to extend relief to an act only initiated after the employment had terminated: quite apart from that being contrary to the plain wording of section 6(2).

LORD JUSTICE MANTELL:

40. I agree.
ORDER: Appeal dismissed with costs; permission to appeal refused; Section II order against Legal Services Commission.
(Order does not form part of approved Judgment)