Jones v 3M Healthcare Ltd

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLORD JUSTICE PILL,LORD JUSTICE BUXTON,LORD JUSTICE MANTELL,LORD JUSTICE PETER GIBSON
Judgment Date14 November 2003
Neutral Citation[2003] EWCA Civ 1709,[2001] EWCA Civ 634
Docket NumberA1/2003/0957/1149/1248,Case No: A1/2000/0404

[2001] EWCA Civ 634

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

Before:

Lord Justice Pill

Lord Justice Mantell and

Lord Justice Buxton

Case No: A1/2000/0404

Christine Rhys-Harper
Appellant
and
Relaxion Group Plc
Respondent

Helen Gower & Mr S. Brittenden (instructed by Messrs Hancock Caffin) appeared for the Appellant

David Reade & Miss L. Bone (instructed by Jones & Warner) appeared for the Respondent

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 61997CJ0185"> [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...

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1 books & journal articles
  • Is a claim for post-employment victimisation currently permissible under the Equality Act 2010?
    • United Kingdom
    • International Journal of Discrimination and the Law Nbr. 14-2, June 2014
    • 1 June 2014
    ...the sister of the claimant about what he would do to her sister and her.19. Supra 21 Para. 110.20. (1997) IRLR 105.21. Section 6(2).22. (2001) IRLR 460 CA.23. Interpreted in line with the Equal Treatment Directive.24. Supra 1 Coote.25. (2003) IRLR 484 HL.26. Unlike victimisation, which is e......

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