Jessemey v Rowstock Ltd and Another
| Jurisdiction | England & Wales |
| Judge | Lord Justice Underhill,Lord Justice Ryder,Lord Justice Maurice Kay |
| Judgment Date | 26 February 2014 |
| Neutral Citation | [2014] EWCA Civ 185 |
| Date | 26 February 2014 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: A2/2013/0874 |
[2014] EWCA Civ 185
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
Mr Recorder Luba QC and 2 lay members
UKEAT011212DM
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Maurice Kay
(Vice President of the Court of Appeal, Civil Division)
Lord Justice Ryder
and
Lord Justice Underhill
Case No: A2/2013/0874
Ms Karon Monaghan QC and Mr Christopher Milsom (instructed by The Equality and Human Rights Commission) for the Appellant
Mr John Crosfill and Mr Jason Braier (instructed by Lawdata Ltd) for the Respondents
Hearing dates : 5–6 November 2013
INTRODUCTION
The issue raised by this appeal is whether the Equality Act 2010 prohibits acts of victimisation committed against a former employee. On 5 March 2013 the Employment Appeal Tribunal in this case, sitting in a constitution chaired by Mr Recorder Luba QC, held that it does not; but in a case decided two months later, Onu v Akwiwu, a constitution chaired by the President, Langstaff J, held that it does. The decisions are reported at [2013] ICR 807 and [2013] ICR 1039. The issue is of practical importance because claims by former employees that their employer has acted to their prejudice following the termination of the employment – typically, though by no means only, by giving a bad (or no) reference – are not at all uncommon.
Appeals in both cases were listed before us on the same occasion, but it was agreed that the present case should be treated as the lead – though there will still be a separate substantive judgment in Onu since that case raises other issues in addition. We have taken into account both the submissions addressed to us in the instant case by Ms Karon Monaghan QC and Mr Christopher Milsom for the Claimant (the Appellant before us) and by Mr John Crosfill and Mr Jason Braier for the Respondents and the submissions of Mr James Robottom and Mr Jake Dutton for the Claimant and the Respondents respectively in Onu. I should note that Ms Monaghan and Mr Milsom are instructed by the Equality and Human Rights Commission. In the EAT the Commission appeared in its own right as an intervener, instructing Mr Milsom: the Claimant was represented by a solicitor.
Since the issue is one of pure law I need only give the barest summary of the facts. The Claimant was employed by the First Respondent, Rowstock Ltd, which was a small car sales and repair business in Didcot in Oxfordshire; the Second Respondent, Mr Davis, was a director of Rowstock and appears in practice to have run the business. In January 2011 the Claimant was dismissed on the ground that he was aged over 65. He brought proceedings for unfair dismissal and age discrimination. He sought the help of an employment agency to find another job. When they approached Mr Davis he gave the Claimant a very poor reference. The Claimant believed that the reason for that reference was that he had brought proceedings, and he presented a further claim alleging victimisation contrary to the Equality Act 2010.
By a decision sent to the parties on 7 December 2011 an Employment Tribunal sitting at Reading, chaired by Employment Judge Hardwick, upheld the claims of unfair dismissal and age discrimination and awarded the Claimant compensation totalling (together with some smaller ancillary awards) £24,682.73. As regards the victimisation claim it found that the reason for the bad reference was that "the Claimant was pursuing Employment Tribunal proceedings". However, it held that "post-employment victimisation" was not unlawful under the 2010 Act. The EAT, as I have said, reached the same conclusion.
THE LAW
THE LAW PRIOR TO THE EQUALITY ACT 2010
Although the present claim is brought under the 2010 Act, it is necessary for an understanding of the issues on this appeal that I say something about the predecessor legislation and the case-law that it attracted.
In each of the "first-generation" discrimination statutes – the Sex Discrimination Act 1975, the Race Relations Act 1976 and the Disability Discrimination Act 1995 – the proscription of discrimination in the employment field was expressed in very similar terms. Section 6 (2) of the 1975 Act and section 4 (2) of the 1976 Act are substantially identical, and I need only set out the former, which read:
"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."
(I have italicised the key words.) The equivalent provision in the 1995 Act (as originally enacted), which is section 4 (2), was slightly differently worded, the key words being "it is unlawful to discriminate against a disabled person whom he employs…". All three statutes contained provisions defining victimisation as a sub-species of discrimination, described as "discrimination by way of victimisation" (see section 4 of the 1975 Act, section 2 of the 1976 Act and section 55 of the 1995 Act); and thus the proscription of discrimination in the sections to which I have referred applied equally to victimisation.
In Post Office v Adekeye [1997] ICR 110 this Court decided that the 1976 Act did not prohibit discrimination against a former employee. It held that the natural meaning of the phrase "employed by him" in section 4 (2) was confined to persons employed at the time of the act complained of; and there was no other provision covering cases where the employment had terminated.
Shortly afterwards, in Coote v Granada Hospitality Ltd. ( C-185/97) [1998] ECR I-5199, [1999] ICR 100, the ECJ decided a reference from the EAT in a case of the alleged victimisation of a former employee who had brought a claim of sex discrimination. Discrimination on grounds of sex was proscribed under the Equal Treatment Directive (76/307/EEC); but the Directive did not refer expressly to victimisation (save in the form of dismissal). The Court held that the "principle of effectiveness" meant nevertheless that member states were required to ensure that employees making claims of sex discrimination were protected against being victimised on that account. More pertinently for present purposes, it held that that was the case whether the victimisation occurred during employment or subsequently. At para. 25 of the judgment (p. 113) it said:
"… [I]t 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."
When the case returned to the EAT (see [1999] ICR 942) it was held that Adekeye should not be followed and that it was possible to construe the phrase "in the case of a woman employed by him" as covering the case of a former employee.
The issue of whether post-employment discrimination (including victimisation) fell within the terms of the provisions to which I have referred was authoritatively determined by the House of Lords in a number of appeals heard together and reported as Rhys-Harper v Relaxion Group plc [2003] ICR 867. The cases in question covered claims under all three statutes. It was held (reversing the decisions of the Court of Appeal) that the statutory language was indeed capable of applying in certain circumstances to discrimination against (or victimisation of) former employees: Adekeye was over-ruled and the decision of the EAT in Coote was approved. I need not set out the reasoning in detail, and there are in fact some differences between the speeches. The essential point is that it was regarded as extremely unlikely that Parliament had intended to exclude all claims for post-employment discrimination; and that, that being so, the phrases "employed by him" and "whom he employs" (despite, in the latter case, the use of the present tense) could and should be read as applying to former employees. Most of the members of the House found it unnecessary to rely on the decision of the ECJ in Coote: they reached their conclusions applying ordinary domestic principles of construction. 1
In 2003 regulations were made addressing discrimination, victimisation and harassment on the grounds of sexual orientation and religion or belief: equivalent regulations in relation to age were made in 2006 2. The provisions proscribing discrimination followed the same broad pattern as the statutes referred to above, and again victimisation was treated as a sub-species of discrimination. However each of the sets of regulations contained an express provision entitled "relationships which have come to an end". Since the Claimant's original complaint was of age discrimination, I will take reg. 24 of the Employment Equality (Age) Regulations 2006 as standing for all. It read (so far as material):
"(1) In this regulation a "relevant relationship" is a relationship during the course of which an act of discrimination against, or harassment of, one party to the relationship ("B") by the other
party to it ("A") is unlawful by virtue of any preceding provision of this Part.(2) Where a relevant relationship has come to an end, it is unlawful for A–
(a) to discriminate against B by subjecting him to a detriment; or
(b) to subject B to...
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