Jones v 3M Healthcare Ltd
| Jurisdiction | England & Wales |
| Judge | LORD NICHOLLS OF BIRKENHEAD,LORD HOPE OF CRAIGHEAD,LORD HOBHOUSE OF WOODBOROUGH,LORD SCOTT OF FOSCOTE |
| Judgment Date | 19 June 2003 |
| Neutral Citation | [2003] UKHL 33 |
| Date | 19 June 2003 |
| Court | House of Lords |
and three other actions
[2003] UKHL 33
The Appellate Committee comprised:
Lord Nicholls of Birkenhead
Lord Hope of Craighead
Lord Hobhouse of Woodborough
Lord Scott of Foscote
Lord Rodger of Earlsferry
HOUSE OF LORDS
My Lords,
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
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.
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.
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.
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
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.
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.
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.
Mr D'Souza has now appealed against this decision. His appeal is supported by the Commission for Racial Equality.
The disability discrimination cases
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.
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.
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.
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'.
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.
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'.
The fourth disability...
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