Kirker v British Sugar Plc and Another; Jones v 3M Healthcare Ltd; Angel v New Possibilities NHS Trust; Bond v Hackney Citizens' Advice Bureau

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLORD JUSTICE PILL,Lord Justice Mummery,LORD JUSTICE MUMMERY,LORD JUSTICE LATHAM
Judgment Date27 February 2002
Neutral Citation[2002] EWCA Civ 304
Docket Number2002/0018/A1 2002/0020/A1 2002/0021/A1

[2002] EWCA Civ 304

IN THE SUPREME COURT OF JUDICATURE

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE EAT

(MR. JUSTICE LINDSAY)

Royal Courts of Justice

Strand

London WC2

Before

Lord Justice Pill

Lord Justice Mummery and

Lord Justice Latham

2002/0018/A1

2002/0019/A1

2002/0020/A1

2002/0021/A1

Between
Nicholas Kirker
Claimant
and
British Sugar Plc & Anor.
Defendants
Between
Gerald Philip Jones
Claimant
and
3M Healthcare Limited
Defendant
Between
Diana Angel
Claimant
and
New Possibilities NHS Trust
Defendant
Between
Charmaine Bond
Claimant
and
Hackney Citizens' Advice Bureau
Defendant

MISS S. DREW (instructed by the Disability Rights Commission) appeared on behalf of the Claimants.

MR. J. SWIFT (instructed by Messrs. Greenwoods) appeared on behalf of the Defendant British Sugar plc.

MR. T. KIBLING (instructed by Messrs. Eversheds, Nottingham NG1 6FZ) appeared on behalf of the Defendant 3M Healthcare Ltd.

( )

Wednesday, 27th February 2002

LORD JUSTICE PILL
1

Lord Justice Mummery will give the first judgment.

LORD JUSTICE MUMMERY
2

These are expedited appeals from orders made by the Employment Appeal Tribunal on 11th December 2001 dismissing four appeals supported by the Disability Rights Commission. Permission to appeal to this court was granted by the Appeal Tribunal.

3

The appeals all raise the same question on the construction of section 4(2) of the Disability Discrimination Act 1995 ("the 1995 Act"). The question is: does an Employment Tribunal have jurisdiction to consider a complaint under the 1995 Act that a disabled person has suffered discrimination or victimisation as a result of an act alleged to have been committed by the former employer after the termination of the employment relationship with the disabled applicant?

4

Section 4 in Part II (Employment) of the 1995 Act provides:

"Discrimination by employers

4. Discrimination against applicants and employees

(1) It is unlawful for an employer to discriminate against a disabled person—

(a) in the arrangements which he makes for the purpose of determining to whom he should offer employment;

(b) in the terms on which he offers that person employment; or

(c) by refusing to offer, or deliberately not offering, him employment.

(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

(c) by dismissing him, or subjecting him to any other detriment.

(3) Subsection (2) does not apply to benefits of any description if the employer is concerned with the provision (whether or not for payment) of benefits of that description to the public, or to a section of the public which includes the employee in question, unless—

(a) that provision differs in a material respect from the provisions of the benefits by the employer to his employees; or

(b) the provision of the benefits to the employee in question is regulated by his contract of employment; or

(c) the benefits relate to training.

(4) In this Part 'benefits' includes facilities and services.

(5) In the case of an act which constitutes discrimination by virtue of section 55, this section also applies to discrimination against a person who is not disabled.

(6) This section applies only in relation to employment at an establishment in Great Britain."

5

Victimisation is only unlawful if covered by Parts II or III of the 1995 Act. Section 55 accordingly provides:

"Victimisation

(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

(ii) given evidence or information in connection with such proceedings brought by any person; or

(iii) otherwise done anything under this Act in relation to A or any other person; 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 these things.

(3) Where B is a disabled person, or a person who has had a disability, the disability in question shall be disregarded in comparing his circumstances with those of any other person for the purposes of subsection (1)(a).

(4) Subsection (1) does not apply to treatment of a person because of an allegation made by him if the allegation was false and not made in good faith."

6

I now proceed to the background of the four appeals.

A. KIRKER

7

Mr. Nicholas Kirker was employed by British Sugar plc as a shift chemist until 17th March 1997, when he was dismissed for redundancy along with 25 other employees. His claim that he had been discriminated against as a disabled person (he has very poor eyesight, which made him eligible for full blind registration) and unfairly dismissed succeeded in both the Employment Tribunal and the Employment Appeal Tribunal. On 13th August 1999 he applied for a position as a warehouse operative with a company called Ambitions Personnel. He gave British Sugar as a referee. Mr. Mallott, the manager of British Sugar's facility at Newark where Mr. Kirker had worked, completed and returned on 20th August 1999 a reference questionnaire submitted by Ambitions Personnel. The reference was apparently not received. Mr. Kirker was initially rejected for lack of a reference. When this was brought to the attention of Mr. Mallott he sent another copy of the reference to Ambitions Personnel on 4th November 1999. The reference was received. The position was still vacant, but Mr. Kirker was not appointed to fill it. On 10th November 1999 he presented an Originating Application to the Employment Tribunal alleging disability discrimination against Ambitions Personnel. On 7th February 2000 he successfully applied for British Sugar to be joined as second respondent, alleging that it had victimised him contrary to the 1995 Act in failing to respond to the request for a reference from Ambitions Personnel. British Sugar successfully applied to be disjoined and for the claim against it to be struck out on the basis that the alleged act of victimisation took place after the effective date of termination of Mr. Kirker's employment by British Sugar. The Employment Tribunal noted in particular the use of the present tense in the phrase "whom he employs" in section 4(2) of the 1995 Act as pointing to the application of the Act to employees only during the course of their employment. British Sugar contends that there is no error of law in the Extended Reasons of the Employment Tribunal sent to the parties on 28th July 2000.

B. JONES

8

Mr. Gerald Jones was dismissed by 3M Healthcare Limited in November 1997. He had worked for 3M as a computer network analyst since June 1983. He brought proceedings for unfair dismissal and sex and disability discrimination, which were dismissed on 26th August 1998. He presented an Originating Application to the Employment Tribunal on 8th March 2000, 27 months after his dismissal, complaining that he had been subjected to discrimination and victimisation on the ground of sex and disability (severe clinical depression) when it refused on 27th September 1999 to return to him his business cards, which he had left in the office on ceasing employment with 3M. He requested their return by letter dated 12th September 1999. 3M did not comply with the request as it considered that the cards belonged to it. The cards had in fact been delivered up to him by order of the County Court on 14th February 2000, Mr. Jones having started those proceedings on 28th October 1999. The Employment Tribunal held that it had no jurisdiction to entertain the claim made under the 1995 Act because, at the time of the refusal to return the business cards, Mr. Jones was not employed by 3M as required by Part II of the 1995 Act. It did, however, have jurisdiction to consider his claim of victimisation under the Sex Discrimination Act 1975 on the authority of the decision of the Employment Appeal Tribunal in Coote v. Granada Hospitality Limited (No 2) [1999] ICR 942 holding that the expression "who is employed" in section 6(2) of the 1975 Act is capable of being "who has been employed", and he was allowed to pursue that claim.

C. ANGEL

9

Mrs. Diane Angel was employed by New Possibilities NHS Trust from July 1993 until July 1998, when she was dismissed from her nursing post having suffered back and hip problems. She made a successful claim against New Possibilities under the 1995 Act. She then sought employment with Ling Trust. On 12th January 2000 New Possibilities supplied a reference to Ling Trust. On 16th March 2000 Mrs. Angel presented a second Originating Application complaining of continuing discrimination and victimisation against her under the 1995 Act in respect of the reference supplied to Ling Trust, which she considered to be adverse because of her earlier tribunal proceedings. Following a preliminary hearing on the construction of section 4(2), the Employment Tribunal concluded, with "a certain amount of concern", in its Extended Reasons sent to the parties on 21st August 2000, that it did not have jurisdiction to consider her claim. It distinguished Coote as a case relating to sex discrimination informed by the parent Equal Treatment Directive and by the ruling of the Court of Justice on the interpretation of that directive. The...

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