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Rhys-Harper v by xiuliliaofz

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									Rhys-Harper v. Relaxion Group plc
D'Souza v. Lambeth London Borough Council
Jones v. 3M Healthcare Ltd
Kirker v. British Sugar plc and another
Angel v. New Possibilities NHS Trust
Bond v. Hackney Citizens Advice Bureau


House of Lords

Lord Nicholls of Birkenhead, Lord Hope of Craighead, Lord Hobhouse of
Woodborough, Lord Scott of Foscote and Lord Rodger of Earlsferry Lord
Nicholls of Birkenhead, Lord Hope of Craighead, Lord Hobhouse of
Woodborough, Lord Scott of Foscote and Lord Rodger of Earlsferry Lord
Nicholls of Birkenhead, Lord Hope of Craighead, Lord Hobhouse of
Woodborough, Lord Scott of Foscote and Lord Rodger of Earlsferry

LORD NICHOLLS OF BIRKENHEAD

    1 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

     2 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.
     3 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.
    4 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 *872 able to
challenge the evidence of witnesses. So time ran from 30 November, and her sex
discrimination application was in time.
    5 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 1976, but the relevant provisions in
the Sex Discrimination Act 1975 are indistinguishable. The Court of Appeal,
comprising Pill, Mantell and Buxton LJJ, dismissed Ms Rhys-Harper's appeal
against that decision: see [2001] ICR 1176. Buxton LJ said, at p 1185, para 25 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

    6 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 1976. 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.
    7 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 [1997] ICR 110, it had no jurisdiction to
hear these applications.
    8 The 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 para 17, that the court saw "some force" in
the submission that the decision in Adekeye's case could have gone the other way.
    9 Mr D'Souza has now appealed against this decision. His appeal is supported by
the Commission for Racial Equality.

The disability discrimination cases

    10 The third appeal comprises four disability cases. Each case involves
victimisation. Each applicant claims he was discriminated against because *873 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.
    11 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 appeal tribunal.
    12 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.
    13 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 [1997]
ICR 110. 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".
    14 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.
    15 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 inquiries 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".
    16 The fourth disability discrimination case is that of Mr Jones. Gerald Jones
was employed by 3M Healthcare Ltd as a computer network *874 analyst until
dismissed in November 1997. He brought proceedings, which were unsuccessful, for
unfair dismissal and sex and disability discrimination. While employed Mr Jones
had received business cards from other organisations. He had left these cards in his
office when his employment ended. In September 1999 he asked 3M to return the
cards, but the company declined to do so. Mr Jones then brought proceedings in the
county court, and the cards were delivered to him pursuant to an order of the court
made in February 2000. Thereafter, in March 2000, Mr Jones made an application to
an employment tribunal, complaining that in respect of 3M's earlier refusal to return
the cards he had been subjected to victimisation and discrimination on the grounds
of sex and disability, the disability being severe clinical depression. The tribunal
held it had no jurisdiction to hear the claims under the Disability Discrimination Act
1995, because at the time he was not employed by 3M, but that it did have
jurisdiction to hear the victimisation claim made under the Sex Discrimination Act
1975. This conclusion, which draws a distinction between a claim for victimisation
under the Sex Discrimination Act and a similar claim under the Disability
Discrimination Act, derives from the impact of the Equal Treatment Directive
(Council Directive 76/207/EEC). This Directive is applicable to sex discrimination
but not racial or disability discrimination.
    17 All four disability claimants appealed from the adverse decisions of the
employment tribunals. Their appeals were heard together by the Employment
Appeal Tribunal under the presidency of Lindsay J. After reviewing the authorities
the appeal tribunal dismissed the appeals. In doing so Lindsay J commented that this
outcome was unsatisfactory, adding [2002] ICR 341, 358C, para 44: "if there is any
escape other than by legislative amendment, it lies only, as it seems to us, in the
House of Lords."
    18 The four claimants then appealed to the Court of Appeal. The court,
comprising Pill, Mummery and Latham LJJ, dismissed the appeals: see [2002] ICR
1124. Mummery LJ said, at pp 1130, 1131, paras 12 and 21, that the meaning of the
legislation was plain. This further appeal to your Lordships' House is supported by
the Disability Rights Commission.

The statutory provisions

    19 The basic structure of the Sex Discrimination Act 1975 and the Race
Relations Act 1976 is familiar enough. These are parallel Acts, using the same
concepts. Much of the language is identical. Each statute defines discrimination, and
prohibits discriminatory conduct over a wide range of activities in specified fields,
of which the primary one is employment. Sanctions are provided for breaches of the
prohibitions. Each Act established a commission: the Equal Opportunities
Commission, in the case of the Sex Discrimination Act, and the Commission for
Racial Equality, in the case of the Race Relations Act. The duties of the Equal
Opportunities Commission were to work towards the elimination of sex
discrimination, to promote equality of opportunity between men and women, and to
keep under review the working of the Act and the Equal Pay Act 1970. The
Commission for Racial Equality was given comparable duties regarding racial
discrimination. The Disability Rights Commission, established by the Disability
Rights Commission Act 1999, exercises similar functions regarding disability
discrimination.
     20 I can note first the relevant provisions of the Sex Discrimination Act 1975.
Nothing turns, for the purpose of the present appeals, on the precise wording of the
definition of sex discrimination in sections 1 and 2. Suffice to say, under section
1(1)(a) a person discriminates directly against a woman, in any circumstances
relevant for the purposes of any provision of the Act, if "on the ground of her sex he
treats her less favourably than he treats or would treat a man". Under section 1(1)(b)
discrimination also embraces "indirect" discrimination. Stated very broadly, this
consists of applying to a woman a requirement or condition which would equally be
applied to a man but which can less readily be complied with by women. Section 2
applies the section 1 definition in the converse case of less favourable treatment of a
man.
     21 Section 4 of the 1975 Act provides that discrimination also includes
victimisation. Essentially this comprises treating a person less favourably in
retaliation for her having exercised her rights under the Act or under the Equal Pay
Act 1970 or having assisted others to do so. Section 4(1) provides:
         "A person ('the discriminator') discriminates against another person
         ('the person victimised') in any circumstances relevant for the
         purposes of any provision of this Act if he treats the person
         victimised less favourably than in those circumstances he treats or
         would treat other persons, and does so by reason that the person
         victimised has--
              (a) brought proceedings against the discriminator or any other
              person under this Act or the Equal Pay Act 1970, or
              (b) given evidence or information in connection with
              proceedings brought by any person against the discriminator
              or any other person under this Act or the Equal Pay Act 1970,
              or
              (c) otherwise done anything under or by reference to this Act
              or the Equal Pay Act 1970 in relation to the discriminator or
              any other person, or
              (d) alleged that the discriminator or any other person has
              committed an act which (whether or not the allegation so
              states) would amount to a contravention of this Act or give
              rise to a claim under the Equal Pay Act 1970, or by reason
              that the discriminator knows the person victimised intends to
              do any of those things, or suspects the person victimised has
              done, or intends to do, any of them."
Subsection (1) does not apply to treatment of a person by reason of a false allegation
not made in good faith.
     22 Against the background of this definition of discrimination, including as it
does victimisation under section 4 as well as sex discrimination under sections 1 and
2, I turn to section 6. This concerns discrimination by employers. Section 6(1)
renders unlawful certain types of conduct by a prospective employer:
         "It is unlawful for a person, in relation to employment by him at an
         establishment in Great Britain, to discriminate against a woman--
             (a) in the arrangements he makes for the purpose of
             determining who should be offered that employment, or
             (b) in the terms on which he offers her that employment, or
             (c) by refusing or deliberately omitting to offer her that
             employment."
    23 Section 6(2) is the key section for present purposes. I have emphasised the
crucial phrase.
        "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."
    24 The structure and provisions of the Race Relations Act 1976 are in
substantially identical terms subject, of course, to discriminatory treatment being
related to racial grounds and not, as in the Sex Discrimination Act 1975, to the
ground of sex. "Racial grounds" means grounds of colour, race, nationality or ethnic
or national origins. The definitions of racial discrimination and victimisation in
section 1(1) and section 2 of the Race Relations Act correspond to the definitions of
sex discrimination and victimisation in section 1(1) and section 4 of the Sex
Discrimination Act. Similarly, the prohibition of discrimination against applicants
and employees in section 4 of the Race Relations Act corresponds in all respects
now material to the like prohibition in section 6 of the Sex Discrimination Act.
Section 4(2) provides, with emphasis added:
        "It is unlawful for a person, in the case of a person employed by him
        at an establishment in Great Britain, to discriminate against that
        employee--
             (a) in the terms of employment which he affords him; or
             (b) in the way he affords him access to opportunities for
             promotion, transfer or training, or to any other benefits,
             facilities or services, or by refusing or deliberately omitting to
             afford him access to them; or
             (c) by dismissing him, or subjecting him to any other
             detriment."
    25 The structure and scope of the relevant provisions in the Disability
Discrimination Act 1995 differ in some respects from the corresponding provisions
in the other two Acts. But the crucial provisions concerning discrimination by
employers, although couched in slightly different language, are in the relevant
respects to the same effect. Section 1 of the Act defines a disabled person as a
person who has a disability. A person has a disability "if he has a physical or mental
impairment which has a substantial and long-term adverse effect on his ability to
carry out normal day-to-day activities". Section 4(1) prohibits discrimination against
applicants for employment. Section 4(2) prohibits discrimination against employees:
        "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
            (d) by dismissing him, or subjecting him to any other
            detriment." (Emphasis added.)
This subsection reproduces, in a more modern format and with minor linguistic
changes, the corresponding provision in section 4(2) of the Race Relations Act
1976. For present purposes the only difference of note is that section 4(2) of the
Disability Discrimination Act 1995 prohibits discrimination by an employer against
"a disabled person whom he employs". As already mentioned, the corresponding
phrase in section 6(2) of the Sex Discrimination Act 1975 and section 4(2) of the
Race Relations Act 1976 is a person "employed by him".
    26 Discrimination is defined in the Disability Discrimination Act 1995 in terms
which, particularly in one respect, give this expression a wider meaning than under
the other two Acts. Under section 5(1) an employer discriminates against a disabled
person if, for a reason which relates to the disabled person's disability, he treats him
less favourably than he treats others to whom that reason does not apply, and he
cannot show that the treatment is justified. As under the other two Acts,
discrimination also includes discrimination by way of victimisation: see section 55.
Additionally, however, under the Disability Discrimination Act 1995 discrimination
includes failure to comply with a section 6 duty which the employer cannot show is
justified. A section 6 duty is a duty imposed on an employer to make adjustments to
his arrangements, or to the physical features of premises occupied by him, which
place the disabled person at a substantial disadvantage in comparison with persons
who are not disabled. For this purpose "arrangements" means arrangements for
determining to whom employment should be offered, and terms, conditions or
arrangements on which employment, promotion, a transfer, training or other benefit
is offered or afforded.
    27 Each of the three Acts contains enforcement provisions. Under section 63 of
the Sex Discrimination Act 1975 a complaint that an unlawful act of discrimination
has been committed in the employment field may be made to an employment
tribunal. Similar provisions are to be found in the Race Relations Act 1976, section
54, and the Disability Discrimination Act 1995, section 8.
    28 I should next note Council Directive 76/207/EEC, of 9 February 1976 (OJ
L45, p 19). This Directive, known colloquially as the Equal Treatment Directive, is
concerned only with sex discrimination. The purpose of the Directive was to put into
effect in member states the principle of equal treatment for men and women in
respect of several matters, including access to employment and working conditions:
article 1. Article 5 provided 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 the grounds of sex. Article 6 provided that member states should introduce into
their national legal systems such measures as are necessary to enable all persons
who consider themselves wronged by failure to apply to them the principle of equal
treatment within the meaning of article 5 to pursue their claims by judicial process.
Article 7 provided that member states should take the necessary measure to protect
employees against dismissal by their employers "as a reaction to a complaint within
the undertaking or to any legal proceedings aimed at enforcing compliance with the
principle of equal treatment". In a word, victimisation. The Sex Discrimination Act
1975 gave effect to this Directive in this country.

The authorities

    29 The question whether conduct of an employer after termination of the
contract of employment can constitute unlawful discrimination appears to have
arisen for decision for the first time in a case which came before the *878 appeal
tribunal in 1993: Nagarajan v Agnew [1995] ICR 520. That was a claim under the
Race Relations Act 1976. Knox J said that there has to be a "subsisting employment
relationship" at the time when the events contemplated in section 4(2) of the Act
occur. The majority of the events listed in that subsection can occur only during
employment, the whole provision is couched in the present tense, and had
Parliament intended to include post-employment benefits, it would have made that
intention explicit: see pp 530-531.
    30 Three years later the point came before the Court of Appeal, on another claim
of racial discrimination: Post Office v Adekeye [1997] ICR 110. Omalara Adekeye
was employed by the Post Office as a customer care officer until summarily
dismissed for misconduct. She utilised the internal appeal procedures of the Post
Office to appeal against her dismissal. Her appeal was unsuccessful. She then
presented a complaint to an employment tribunal, asserting she had been the subject
of unlawful racial discrimination in the conduct and outcome of her appeal. The
Court of Appeal, comprising Hirst, Peter Gibson and Pill LJJ, followed the decision
in the Nagarajan case and held that the employment tribunal had no jurisdiction to
entertain Ms Adekeye's complaint. Section 4(2) protects only those whose
employment continues at the time of the act of discrimination: see p 118D. Peter
Gibson and Pill LJJ considered it was "unsatisfactory" that the Act does not extend
to give a remedy to an ex-employee pursuing an appeal against dismissal.
    31 Meanwhile, the question of jurisdiction regarding post-termination conduct
had arisen in the context of a victimisation claim. Belinda Coote presented a
complaint against her former employer, Granada Hospitality Ltd. She had been
employed as a bowling centre manager until dismissed. She brought a claim for sex
discrimination against Granada, asserting she had been dismissed because of
pregnancy. That claim was settled. Subsequently she presented another complaint,
asserting that Granada's refusal to provide a reference to an employment agency was
in retaliation for the claim she had previously brought against Granada. The appeal
tribunal referred a question to the European Court of Justice.
    32 The Court of Justice held that the "principle of effective judicial control" laid
down in article 6 would be deprived of an essential part of its effectiveness if the
protection afforded did not cover retaliatory steps. Fear of such retaliation, if no
legal redress were available, might deter employees from pursuing sex
discrimination claims. That would be liable seriously to jeopardise the aim of the
Equal Treatment Directive. The court rejected the United Kingdom government's
argument that retaliatory steps were outside the scope of the Directive if taken after
the employment relationship had ended: see Coote v Granada Hospitality Ltd (Case
C-185/97) [1999] ICR 100.
    33 The appeal tribunal then resumed its hearing of Ms Coote's appeal: Coote v
Granada Hospitality Ltd (No 2) [1999] ICR 942. In the light of the judgment of the
Court of Justice the appeal tribunal, presided over by Morison J, declined to follow
Adekeye's case [1997] ICR 110. The phrase "in the case of a woman employed by
him" in section 6(2) of the Sex Discrimination Act 1975 was capable of embracing
the case of a woman "who has been employed by him". Thus it was possible to
construe section 6(2) in a way which would conform with the Equal Treatment
Directive as authoritatively interpreted by the European Court. Section 6(2) should
be so interpreted. Accordingly, the employment tribunal had jurisdiction to entertain
Ms Coote's claim even though the act of victimisation of which she complained had
occurred after her dismissal.

The interpretation of the legislation: "employed by him" and "whom he employs"

    34 Two points relevant to the interpretation of the legislation are tolerably clear.
First, the decisions in Adekeye's case and Coote v Granada Hospitality Ltd (No 2)
are inconsistent. Coote's case was a case of victimisation, Adekeye's case seemingly
was not. But, for the purpose now in hand, it is not possible to differentiate between
victimisation and other forms of discrimination. Section 6(2) of the Sex
Discrimination Act 1975, containing the phrase "employed by him", is a single
provision governing all forms of discrimination prohibited by that subsection. The
proper interpretation of section 6(2), whatever it may be, applies equally to all forms
of discrimination prohibited by that subsection, sex discrimination as defined in
sections 1 and 2 as well as victimisation as defined in section 4. The position is the
same under section 4(2) of the Race Relations Act 1976 and section 4(2) of the
Disability Discrimination Act 1995.
    35 Next, although this may be more controversial, section 6(2) of the Sex
Discrimination Act, section 4(2) of the Race Relations Act and section 4(2) of the
Disability Discrimination Act all bear the same meaning on the point now in issue.
(In saying this I am leaving aside for the moment any special implications the Equal
Treatment Directive may have on the interpretation of the Sex Discrimination Act.)
The only distinction between the language of these three Acts is the distinction
already mentioned: the Sex Discrimination Act and the Race Relations Act use the
phrase "employed by him", and the Disability Discrimination Act uses the
expression "whom he employs". I consider this is a distinction without a difference.
In the context of section 6(2) of the Sex Discrimination Act and section 4(2) of the
Race Relations Act, the phrase "employed by him", although ambiguous, is more
naturally to be read as having the meaning adopted when the phrase was reproduced
in section 4(2) of the Disability Discrimination Act: a person "whom he employs".
    36 Translated into practical terms, where does this lead? The context in which
these expressions are used includes benefits arising from a contract of employment.
A contract of employment creates an employment relationship between two persons,
an employer and an employee. It is a matter of ordinary experience that incidents of
the employment relationship thus created often continue beyond the termination of
the contract of employment which gave rise to the relationship. When a contract of
employment ends the employee ceases to be obliged to work for the employer, and
the employer ceases to be obliged to employ the employee. But the ending of these
obligations does not normally signify a complete end to all aspects of the
relationship between employer and employee. Frequently contractual obligations,
express or implied, accrue or continue after the period of employment has come to
an end. An employee may be subject to obligations of confidentiality or restrictions
on where he may work or for whom he may work. An employer may be subject to
obligations regarding pension rights or bonus payments. These obligations are
matters of contractual right. Frequently also, an employee continues to enjoy,
although not as a matter of contractual entitlement, other benefits arising in respect
of his employment. One important example, of everyday occurrence, is the
opportunity to obtain a reference to assist the employee in obtaining a new job.
Another example is the employee's opportunity to have recourse to internal appeal
or grievance procedures in respect of his dismissal. Sometimes this is a matter of
contractual right, sometimes not.
    37 To my mind the natural and proper interpretation of section 6(2) of the Sex
Discrimination Act 1975 and the corresponding provisions in the other two Acts in
this context is that once two persons enter into the relationship of employer and
employee, the employee is intended to be protected against discrimination by the
employer in respect of all the benefits arising from that relationship. The statutory
provisions are concerned with the manner in which the employer conducts himself,
vis-...-vis the employee, with regard to all the benefits arising from his employment,
whether as a matter of strict legal entitlement or not. This being the purpose, it
would make no sense to draw an arbitrary line at the precise moment when the
contract of employment ends, protecting the employee against discrimination in
respect of all benefits up to that point but in respect of none thereafter.
    38 If such a hard and fast line were drawn at this point it would mean that the
employee who asks for a reference before he retires from his employment is
protected but the employee who asks for a reference the day after he left is not. It
would mean that the employee who is dismissed with notice and whose appeal is
heard before his notice expires is protected against discrimination in his recourse to
the employer's appeal procedure, but the employee who is dismissed summarily and
without notice is not. It would mean that retaliatory action taken by an employer
before the contract of employment ends is within the scope of the legislation, but
retaliatory action taken later, for instance, regarding bonus payments, is not.
    39 This cannot have been the intention of Parliament. Dismissal is one of the
matters in respect of which discrimination is expressly prohibited by the statutes.
Parliament cannot have intended that this prohibition should include an appeal
decision regarding dismissal if the appeal is heard before the dismissal takes effect
but not if it is heard later. That would be palpably absurd. Dismissal cannot have
been intended to have such an artificially limited meaning. Nor can it have been
intended that reprisals may be exacted, so long as they are postponed until after the
employee has been dismissed. Nor can a sensible distinction be drawn between
giving a reference the day before employment ends and giving a reference the day
after.
    40 I recognise that a line has to be drawn somewhere between what is prohibited
and what is not. I recognise also the pioneering character of the anti-discrimination
legislation. Parliament may well have chosen to advance cautiously, one step at a
time, while experience accumulates on the practical working of the legislation and
guidance is forthcoming from the expert commissions entrusted with the task of
keeping the law under review. But these considerations do not point to the
conclusion that, when enacting this new form of legislation, Parliament intended to
ban discrimination in respect of some of the benefits in respect of an employee's
employment but not others, with the distinction between the two categories being
self-evidently capricious.
    41 Nor am I impressed with the argument that prohibiting post-termination acts
of discrimination would expose employers to "long tail" liability. Fears have been
expressed about the potentially burdensome nature of this liability regarding, in
particular, the provision of references. Liability in respect of post-termination acts of
discrimination would, it is said, enable a discontented former employee to harass his
former employer, perhaps years later, when he is provided with an unfavourable
reference or a reference is refused altogether.
    42 There are several strands interwoven in this expression of concern. They must
be separated and considered one by one. First, whenever an employer gives a
reference for a person currently employed by him he is subject to common law
duties of care as well as statutory non-discrimination obligations. I can see no reason
why in this regard the position should be different, or regarded as more onerous, if a
reference is provided for a former employee as distinct from a current employee. If
an employer provides a reference for a former employee he must do so as fairly as
he would for a current employee. Second, regarding refusal to provide a reference,
the question of discrimination can only arise if the employer's normal practice is to
provide references for former employees on request. If that is the employer's
practice, there is surely nothing burdensome in requiring him not to discriminate in
the way he implements this practice. He must not treat one former employee less
favourably than another on grounds of sex or race or disability or by way of
victimisation. If, however, it is not the employer's practice to give references for
former employees, for example, after the lapse of a certain time, then refusal of a
reference after that time cannot give rise to a well founded discrimination claim. In
such a case there would be no question of the employer subjecting the former
employee to a detriment. Third, the prospect of former employers being harassed
with unfounded, vexatious claims cannot be a good reason for refusing to entertain
well founded claims. The appropriate response to this understandable concern of
employers is for employment tribunals to be alert to strike out manifestly ill founded
claims as vexatious.
    43 For these reasons I respectfully disagree with the decision in Adekeye's case
[1997] ICR 110. I understand the reasoning which attracted the Court of Appeal. But
I consider this reasoning attaches insufficient importance to the capricious results
which follow from a too literal interpretation of the statutory language. The Adekeye
interpretation is insufficiently purposive. It pays insufficient heed to the context.
    44 The preferable approach is to recognise that in each of the relevant statutory
provisions the employment relationship is the feature which triggers the employer's
obligation not to discriminate in the stated respects. This is the connection between
two persons which Parliament has identified as requisite for these purposes. Once
triggered, the obligation not to discriminate applies to all the incidents of the
employment relationship, whenever precisely they arise. For the reasons already
given, this obligation cannot sensibly be regarded as confined to the precise duration
of the period of employment if there are incidents of the employment which fall to
be dealt with after the employment has ended. Some benefits accrue during the
period of employment, some afterwards. For the purposes of discrimination, there is
no rational ground for distinguishing the one from the other. They all arise equally
from the employee's employment.
    45 To be an "incident" of the employment relationship for this purpose the
benefit in question must arise between employer or former employer as such and
employee or former employee as such. A reference is a prime example. Further,
save perhaps in exceptional circumstances which it is difficult to envisage, failure to
provide a non-contractual benefit will not constitute a "detriment", or discrimination
in an opportunity to receive a "benefit", within the meaning of the anti-
discrimination legislation unless the non-contractual benefit in question is one which
normally is provided, or would be provided, to others in comparable circumstances.
This is so with regard to current employees. It is equally so with former employees.
But I stress this is not to say that an employer's practice regarding current employees
is to be treated as equally applicable to former employees. This is emphatically not
so. The two situations are not comparable. What is comparable is the way the
employer treats the claimant former employee and the normal way he treats or
would treat other former employees in similar circumstances.
     46 I add, as a footnote, that the question whether the section 6 duty imposed by
the Disability Discrimination Act 1995 continues after the termination of the
contract of employment is a separate question which does not call for decision on
these appeals. I prefer to leave that question open.

The appeals

    47 I would therefore allow the appeal concerning the four disability
discrimination cases. The employment tribunal has jurisdiction to consider each of
these four victimisation claims.
    48 I would also allow Ms Rhys-Harper's appeal in the sex discrimination case.
Whether Ms Rhys-Harper's claim has any reasonable prospect of success is not a
relevant consideration on the issue of jurisdiction which alone is the issue under
consideration by the House. I should add, in the context of this claim under the Sex
Discrimination Act 1975, that I have reached the conclusion expressed above on the
proper interpretation of all three Acts without regard to the impact of the Equal
Treatment Directive or the decision of the European Court of Justice in Coote v
Granada Hospitality Ltd (Case C-185/97) [1999] ICR 100. Having regard to the
conclusion I have reached, it is not necessary to consider the issues arising out of the
Equal Treatment Directive.
    49 In the racial discrimination case the London Borough of Lambeth has another
string to its bow in seeking to resist Mr D'Souza's claim on jurisdictional grounds. It
will be recalled that the basis of Mr D'Souza's claim is that the council discriminated
against him by refusing to reinstate him as ordered by the employment tribunal. This
raises the question whether such a refusal is conduct falling within section 4 of the
Race Relations Act 1976.
    50 I can deal with this issue quite shortly. The effect of the relevant legislation
can be summarised as follows. An order for reinstatement made by an employment
tribunal is an order that the employer shall treat the employee in all respects as if he
had not been dismissed. It is one of the orders an employment tribunal may make, in
the exercise of its discretion, if it upholds an employee's complaint that he was
unfairly dismissed. If an employer fails to reinstate an employee as ordered the
tribunal is required to make an award of compensation for wrongful dismissal, with
an additional award where the employer fails to satisfy the tribunal that it was not
practicable to comply with the order: see sections 68, 69 and 71 of the Employment
Protection (Consolidation) Act 1978, now sections 112, 113, 114 and 117 of the
Employment Rights Act 1996.
    51 In my view the benefit acquired by an employee from a reinstatement order
cannot be regarded as a benefit within the meaning of section 4(2) of the Race
Relations Act. It does not arise from the employment relationship. It derives from an
order of the tribunal, made in the exercise of its discretion, after the employee has
been unfairly dismissed. Such an order is a discretionary statutory remedy for unfair
dismissal, attracting its own sanctions in the event of non-compliance. Nor, for the
like reason, can the employer's failure to comply with the order be regarded as a
detriment within section 4(2).
    52 Nor does the case fall within section 4(1). Lambeth's conduct is not readily
characterised as "deliberately omitting to offer" Mr D'Souza employment within the
meaning of section 4(1)(c). The nature of Lambeth's act was different. Lambeth was
not in the normal position of a prospective employer. What Lambeth did was to fail
to comply with a tribunal order which required the council to restore an employee to
the employment from which he had been dismissed. That characterisation, coupled
with the feature that the statute itself provides remedies for non-compliance with a
reinstatement order, points strongly away from this circumstance being within
section 4(1)(c) of the Race Relations Act. I would so hold.
    53 Since, then, the discriminatory conduct alleged by Mr D'Souza does not fall
within the ambit of section 4 of the Race Relations Act, the employment tribunal has
no jurisdiction to entertain his complaint. For this reason I would dismiss Mr
D'Souza's appeal.

LORD HOPE OF CRAIGHEAD

    54 My Lords, these three appeals raise an important point about the present state
of the law which prohibits discrimination in the field of employment. Common to all
three is an issue of statutory construction. In three separate enactments Parliament
has made it unlawful for employers to discriminate on the grounds of sex, race and
disability. It is not in doubt that statutory protection against discrimination and
victimisation has been given to prospective and existing employees. The area of
doubt to which these appeals have been directed relates to the position of ex-
employees. The question is whether the statutory protection extends to persons who
are no longer employed by the employer and, if so, in what circumstances.
    55 There are two other questions each of which affects one appeal only which
also need to be answered. In order to set the scene I must first set out the facts which
have provided the background to your Lordships' examination of all these issues.

The facts

(1) Rhys-Harper v Relaxion Group plc

    56 The applicant, Christine Lillian Rhys-Harper, was employed by the
respondent in November 1997 as a lifeguard and general assistant at the *884
Helston Sports Centre. On 3 October 1998 an incident occurred there as a result of
which a complaint was made to her employers that the applicant had been rude to
customers. She was suspended from her duties, and on 12 October 1998 the manager
of the centre, Mr Osborn, conducted a disciplinary hearing which resulted in a
decision that she should be dismissed on the ground of misconduct. Her dismissal
was confirmed by Mr Osborn by a letter dated 15 October 1998, in which he told her
that she would be receiving one week's pay in lieu of notice. She exercised her right
of appeal under the respondent's disciplinary procedure.
    57 The appeal hearing was conducted by the respondent's general manager, Mr
Adamson. It took place on 9 November 1998. In the course of the hearing the
applicant alleged that throughout her employment she had been regularly subjected
to sexual harassment by Mr Osborn. Following the appeal hearing the applicant
received two letters from Mr Adamson. In the first, which was undated, he told her
that, having investigated the events, the company had found that there were
sufficient grounds to dismiss her and that the decision to do so was to stand. In the
second, which was dated 30 November 1998, he told her that the company had
carried out a full and thorough investigation into her allegation of sexual harassment
against Mr Osborn at the appeal hearing and that the company's finding was that
there was insufficient evidence to establish a case against him.
    58 On 18 February 1999 the applicant presented an application to the
employment tribunal for unfair dismissal and sex discrimination. In her claim of sex
discrimination she complained of sexual harassment and that the allegation relating
to this matter which she had made at the appeal hearing had not been properly
investigated. The tribunal referred the matter to a preliminary hearing to determine
whether these claims had been lodged within the prescribed three months time limit.
A majority of the tribunal, the chairman dissenting, held that she had been dismissed
on 30 November 1998, that the decision following the investigation into the
allegation of sexual harassment could amount to continuing discrimination and that
the claims of unfair dismissal and sex discrimination had been brought in time.
    59 The respondent appealed to the Employment Appeal Tribunal [2000] IRLR
810, which held that the applicant's employment terminated on 22 October 1998 at
the end of her period of one week's notice and that her claim for unfair dismissal
was out of time. It also held that it had no jurisdiction to consider her allegation of
sex discrimination in regard to the alleged failure by the respondent to carry out a
proper investigation of her allegation of sexual harassment as the discriminatory
conduct was alleged to have occurred after her employment had ended. The
applicant appealed on the question of jurisdiction only, but her appeal on this point
was dismissed by the Court of Appeal (Pill, Mantell and Buxton LJJ): [2001] ICR
1176.
    60 The relevant provisions of the Sex Discrimination Act 1975 (section 1 of
which as originally enacted has been substituted by regulation 3 of the Sex
Discrimination (Indirect Discrimination and Burden of Proof) Regulations 2001 (SI
2001/2660)) are as follows:
        "Part I Discrimination to which Act applies ...

"1

           (1) In any circumstances relevant for the purposes of any provision of
       this Act, other than a provision to which subsection (2) applies, a *885
       person discriminates against a woman if--
           (a) on the ground of her sex he treats her less favourably than he treats or
       would treat a man, or ..."
       "Part II Discrimination in the Employment Field ...

"6
           (1) It is unlawful for a person, in relation to employment by him at an
       establishment in Great Britain, to discriminate against a woman--
           (a) in the arrangements he makes for the purpose of determining who
       should be offered that employment; or
           (b) in the terms on which he offers her that employment; or
           (c) by refusing or deliberately omitting to offer her that employment.
           "(2) 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."

(2) D'Souza v Lambeth London Borough Council

     61 The applicant, Donald D'Souza, was employed by the respondent council
until his dismissal in January 1990. His complaint is of racial discrimination and
victimisation under section 4(2), or alternatively under section 4(1), of the Race
Relations Act 1976.
     62 On 11 April 1990, following his dismissal, the applicant commenced
proceedings against the council in which he alleged unfair dismissal, race
discrimination and victimisation. On 16 November 1992 the employment tribunal
held that he had been unfairly dismissed within the meaning of section 57 of the
Employment Protection (Consolidation) Act 1978 and that he had been unlawfully
discriminated against on racial grounds and victimised within the meaning of the
Race Relations Act 1976. The tribunal ordered the council to reinstate him by 16
January 1993. On 25 March 1993 the council informed the applicant that they were
not willing to do so. The applicant made a further application for reinstatement on
31 July 1995, in response to which the council claimed that the relationship between
them had broken down and that the post which he had previously occupied was no
longer available. On 14 August 1995 the tribunal determined that it had not been
reasonably practicable for the council to reinstate him, and it declined to make an
award of compensation for the failure to reinstate under section 71(2)(b) of the 1978
Act. But on 18 October 1995 the tribunal made an award of compensation for the
unfair dismissal, having regard to the fact that he was not reinstated.
     63 In the meantime on 1 July 1995 the applicant commenced separate
proceedings in which he claimed that the original decision not to reinstate him was
caused by discrimination and victimisation. It is these proceedings with which this
appeal is concerned.
     64 On 14 March 1996 the tribunal determined that it had no jurisdiction to hear
these complaints, as a person who was seeking to be restored to his former
employment was not within the categories of persons who are protected against
racial discrimination and victimisation under the Race Relations Act 1976. That
decision was affirmed by the Employment Appeal Tribunal, and an appeal against
its decision was dismissed by the Court of Appeal (Schiemann and Robert Walker
LJJ and Lloyd J) on 25 May 2001: [2001] EWCA Civ 794.
     65 The relevant provisions of the Race Relations Act 1976 are as follows:
         "Part I Discrimination to which Act applies ...
"1

           (1) A person discriminates against another in any circumstances relevant
       for the purposes of any provision of this Act if--
           (a) on racial grounds he treats that other less favourably than he treats or
       would treat other persons, or ..."

"2

           (1) A person ('the discriminator') discriminates against another person
       ('the person victimised') in any circumstances relevant for the purposes of
       any provision of this Act if he treats the person victimised less favourably
       than in those circumstances he treats or would treat other persons, and does
       so by reason that the person victimised has--
           (a) brought proceedings against the discriminator or any other person
       under this Act; or ...
           (d) alleged that the discriminator or any other person has committed an
       act which (whether or not the allegation so states) would amount to a
       contravention of this Act ..."
       "Part II Discrimination in the Employment Field ...

"4

           (1) It is unlawful for a person, in relation to employment by him at an
       establishment in Great Britain, to discriminate against another--
           (a) in the arrangements he makes for the purpose of determining who
       should be offered that employment; or
           (b) in the terms on which he offers him that employment; or
           (c) by refusing or deliberately omitting to offer him that employment.
           "(2) It is unlawful for a person, in the case of a person employed by him
       at an establishment in Great Britain, to discriminate against that employee--
           (a) in the terms of employment which he affords him; or
           (b) in the way he affords him access to opportunities for promotion,
       transfer or training, or to any other benefits, facilities or services, or by
       refusing or deliberately omitting to afford him access to them; or
           (c) by dismissing him, or subjecting him to any other detriment."

(3) Kirker v British Sugar plc and others

    66 This is a group of four appeals all of which raise the same question about the
right to compensation for post-employment victimisation under section 4(2) of the
Disability Discrimination Act 1995. In summary the facts in each of these cases is as
follows.

Nicholas Kirker
    67 The applicant has very poor eyesight, which has made him eligible for full
registration as a blind person. He was employed by British Sugar plc at Newark as a
shift chemist but was dismissed for redundancy on 17 March 1997. He claimed that
he had been discriminated against as a disabled person. His claim was successful in
the employment tribunal and upheld by the Employment Appeal Tribunal. On 13
August 1999 he applied for a position as a warehouse operative with Ambitions
Personnel and named British Sugar as a referee. The manager at its Newark facility
completed and returned the reference questionnaire which Ambitions Personnel had
sent to him, but it was apparently not received and the applicant's application was
rejected for lack of a reference. When this was brought to his attention the manager
sent another copy of it to Ambitions Personnel as the position was *887 still vacant,
but the applicant was not appointed to fill the position. On 10 November 1999 he
presented an application to the employment tribunal alleging disability
discrimination against Ambitions Personnel. On 7 February 2000 he applied
successfully for British Sugar plc to be joined as second respondent on the ground
that it had victimised him by failing to respond to the application for a reference.

Gerald Philip Jones

    68 The applicant suffers from severe clinical depression. He was dismissed by
3M Healthcare Ltd in November 1997. He brought proceedings against them for
unfair dismissal and disability discrimination, but they were dismissed on 26 August
1998. On 12 September 1999 he asked 3M Healthcare to return his business cards
which he had left in the office when he was dismissed. They refused to return the
cards as they considered that they belonged to them. On 14 February 2000 the
applicant obtained an order for their return from the county court. On 8 March 2000
he presented an application to the employment tribunal complaining that that his
former employers had subjected him to discrimination and victimisation by refusing
to return his business cards.

Diana Angel

    69 The applicant was suffering from back and hip problems when she was
dismissed from the post which she had held since July 1993 as a nurse by New
Possibilities NHS Trust in July 1998. She claimed that she had been discriminated
against on the ground of her disability, and her claim was successful. She then
sought employment with Ling Trust. On 12 January 2000 New Possibilities NHS
Trust provided a reference to Ling Trust, who decided not to offer her employment.
On 16 March 2000 she presented an application to the employment tribunal in which
she complained that she had been discriminated against and victimised by New
Possibilities NHS Trust by supplying her with an adverse reference.

Charmaine Bond

    70 The applicant suffers from back injuries which she sustained in a road
accident. She was employed by Hackney Citizens Advice Bureau until she was
made redundant in October 1999. On 8 November 1999 she presented an application
to the employment tribunal in which she claimed that she had been victimised
because of her disability. On 6 June 2000 she presented a further application
alleging that her former employer had victimised her by refusing to supply her with
a reference and giving false information in reply to inquiries by two companies
which had insured her property in respect of mortgage repayments.
    71 The employment tribunals held that they had no jurisdiction to consider the
applicants' claims of victimisation under the 1995 Act, on the ground that section
4(2) of the Act applied to employees during the course of their employment only
and did not extend to persons who were no longer employed on the date when the
alleged act of victimisation took place. These decisions were upheld by the
Employment Appeal Tribunal [2002] ICR 341. The applicants appealed, but their
appeals were dismissed by the Court of Appeal (Pill, Mummery and Latham LJJ):
[2002] ICR 1124.
    72 The relevant provisions of the Disability Discrimination Act 1995 are as
follows.
        "Part I Disability

"1

           (1) Subject to the provisions of Schedule 1, a person has a disability for
       the purposes of this Act if he has a physical or mental impairment which has
       a substantial and long-term adverse effect on his ability to carry out normal
       day-to-day activities.
           "(2) In this Act 'disabled person' means a person who has a disability ...
       "Part II Employment ...

"4

           (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
           (d) by dismissing him, or subjecting him to any other detriment ...
       "Part VII Supplemental ...

"55

           (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
       ...
           (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 those
       things."

The principal issue

     73 Section 62(1) of the Sex Discrimination Act 1975 provides that a
contravention of the Act shall incur as such no sanction, whether civil or criminal,
except to the extent (if any) expressly provided by that Act. Section 63(1) of that
Act provides that a complaint by any person that another person has committed an
act of discrimination against the complainant which is unlawful by virtue of Part II
of the Act may be presented to an employment tribunal, and section 65 sets out the
remedies that may be given by the tribunal if it finds that a complaint presented
under section 63 is well founded. Provisions to the same effect are to be found in
sections 53, 54 and 56 of the Race Relations Act 1976 and in section 8 of the
Disability Discrimination Act 1995. The effect of these provisions is that complaints
of discrimination on grounds of sex, race and disability in the employment field
must be presented to an employment tribunal. The question of law which is common
to all these cases is whether the employment tribunal has jurisdiction to consider a
complaint of discrimination which relates only to acts which are alleged to have
taken place after the complainant's employment has come to an end.
     74 The answer to this question depends on the meaning which is to be given in
its context to the phrase "employed by him" in section 6(2) of the Sex
Discrimination Act 1975 and section 4(2) of the Race Relations Act 1976 and to the
phrase "whom he employs" in section 4(2) of the Disability Discrimination Act 1995
*889 . As Lord Bingham of Cornhill observed in Anyanwu v South Bank Student
Union (Commission for Racial Equality intervening) [2001] ICR 391, 393, para 2,
this is a trio of Acts which contain similar provisions, although they are directed to
different forms of discrimination. It is plain that, when Parliament used the same
phrase "employed by him" in section 4(2) of the Race Relations Act 1976 as it used
in section 6(2) of the Sex Discrimination Act 1975, it must have intended that it
should be given the same meaning in each of these two Acts. The wording of the
equivalent phrase in section 4(2) of the Disability Discrimination Act 1995 is
slightly different, and there are other differences in the layout and wording of that
Act in comparison with the Acts which deal with discrimination on the grounds of
sex and race. So it will be necessary to consider the meaning which is to be given to
the phrase in the 1995 Act separately.
     75 At the end of the hearing of the appeal in Ms Rhys-Harper's case a further
issue was raised by Mr Reynold on her behalf. Her complaint had been presented
hitherto as a complaint about discrimination after the employment relationship had
ended. But in his closing speech Mr Reynold submitted that, as her allegation of
sexual harassment was made in the course of her appeal against dismissal, her
complaint had a direct bearing on the part played by Mr Adamson who investigated
and rejected that complaint and was the decision-taker in her appeal against her
dismissal. He accepted that the nexus between her complaint of sexual
discrimination in his handling of that allegation and his decision in the appeal
against dismissal had not been made clear previously. The point which he sought
now to put in issue was that, on a correct analysis of the facts, this was a case of
continuing discrimination by victimisation which could be related to the employer's
act in dismissing her.
    76 In Ms Rhys-Harper's case it will also be necessary to take account of the fact
that the Sex Discrimination Act 1975 gave effect in domestic law to Council
Directive 76/207/EEC ("the Equal Treatment Directive"). This is a feature which is
absent from the other two cases, as the legislation which dealt with discrimination
on grounds of race and disability had no equivalent base under the EC Treaty when
it was enacted. Council Directive 2000/43/EC ("the Race Directive") (OJ 2000
L180, p 22) was adopted under article 13 of the EC Treaty by the United Kingdom
and other member states in 2000, but it does not have to be implemented until 19
July 2003. The Community has not yet turned its attention to discrimination in the
employment field on the ground of disability.
    77 A further question of law is raised by the case of Mr D'Souza, as he has an
alternative argument that the decision of his former employer not to reinstate him
when ordered to do so by the employment tribunal was a breach of section 4(1) of
the Race Relations Act 1976. The question is whether, when it refused to do so, his
employer was "refusing or omitting to offer him" that employment within the
meaning of section 4(1)(c) of that Act.

A brief history of the legislation

     78 It is a remarkable fact that, although discrimination on whatever grounds is
widely regarded as morally unacceptable, the common law was unable to provide a
sound basis for removing it from situations where those who were vulnerable to
discrimination were at risk and ensuring that all people were treated equally.
Experience has taught us that this is a matter which can only be dealt with by
legislation, and that it requires careful regulation by Parliament. The Community has
adopted the same approach in its promotion of the principle of equal treatment as
part of its social action programme. The fact is that the principle of equal treatment
is easy to state but difficult to apply in practice. In the result the legislation which is
under scrutiny in these appeals is designed to be specific and particular rather than
universal in its application, and it is still being developed incrementally. It must, of
course, be construed purposively, as Waite LJ said in Jones v Tower Boot Co Ltd
[1997] ICR 254, 261-262. But the scope to be given to the legislation is essentially a
matter for Parliament. The question which lies at the heart of these appeals is what
its intention was when it enacted the provisions in each of these three Acts which
deal with discrimination by employers against applicants and employees.
     79 The Sex Discrimination Act 1975 was designed to give effect to the
principles contained in the White Paper: Equality for Women (Cmnd 5724) of
September 1974. The White Paper stated that the government's ultimate aim was to
harmonise the powers and provisions for sex and race discrimination so as to secure
genuine equality of opportunity in both fields. It made unlawful discrimination
across a wide range of activities in the employment and social fields on the ground
of sex and marital status. It drew on experience of the workings of the Race
Relations Act 1968 and the Equal Pay Act 1970. In the field of employment it
prohibited discrimination in the offering of and other acts preparatory to entering
into a contract of employment. It also extended its provisions against discrimination
once the contract was entered into to non-contractual aspects of the employment
relationship to ensure equality of treatment in the provision of benefits and the
avoidance of detriment. The contractual aspects were dealt with by an amendment to
section 1(1) of the Equal Pay Act 1970 which substituted for the equal pay clause
which was deemed to be included in every contract of employment by that
subsection a more broadly framed equality clause. No indication was given in the
White Paper of an intention to extend the prohibition to non-contractual acts or
omissions by employers once the employment relationship had come to an end, and
there is no provision in the Act which expressly addresses this matter. Some
indication of the common understanding of the scope of the Act when it was enacted
is given by the comment in a general note by the annotator in Current Law Statutes
that section 6 "provides the general prohibition of discrimination by an employer
between prospective and existing employees". (My emphasis.)
    80 The Sex Discrimination Act 1975 received the Royal Assent on 12 November
1975. Council Directive 76/207/EEC "on the implementation of the principle of
equal treatment for men and women as regards access to employment, vocational
training and promotion, and working conditions" was published in the Official
Journal on 14 February 1976 (OJ 1976 L39, p 40). The preamble to the Directive
referred to the Council's Resolution of 21 January 1974 (OJ 1974 C13, p 1)
concerning a social action programme for the purpose of achieving equality between
men and women as regards access to employment and vocational training and
promotion "and as regards working conditions, including pay". It also referred to
Council Directive 75/117/EEC (OJ 1975 L45, p 19) on the approximation of the
laws of the member states relating to the application of the principle of equal pay for
men and women and stated that Community action to achieve the principle of equal
treatment for men and women in respect of access to employment and vocational
training and promotion and "in respect of other working conditions" appeared to be
necessary. No amendment to the Sex Discrimination Act 1975 to give effect to this
Directive in domestic law was thought to be necessary.
    81 The Race Relations Act 1976 was the third enactment dealing with race
relations. The first, in 1965, dealt with incitement to racial hatred and made
discrimination on racial grounds unlawful in places of public resort. The second, in
1968, widened the prohibition of discrimination to other areas including
employment, but it was soon appreciated that further legislation was needed. The
1976 Act too, like the Sex Discrimination Act 1975, was preceded in September
1975 by a White Paper: Racial Discrimination (Cmnd 6234). This White Paper gives
no indication of an intention to extend the scope of the prohibition of discrimination
to acts or omissions by employers after the employment relationship has come to an
end. The language and structure of this Act was closely modelled on the Sex
Discrimination Act 1975. Much of the wording of Part II in both Acts about
discrimination in the employment field, including the sections which deal with
discrimination against applicants and employees, is identical.
    82 Provision was made by both of these Acts for keeping the working of the
legislation under review. Section 53 of the Sex Discrimination Act 1975 provided
for the establishment of the Equal Opportunities Commission, among whose duties
was to be to keep under review the working of that Act and the Equal Pay Act 1970
and, when they were so required by the Secretary of State or otherwise think it
necessary, to draw up and submit to the Secretary of State proposals for amending
them: section 53(1)(c). Section 43 of the Race Relations Act 1976 provided for the
establishment of the Commission for Racial Equality with the same duty to keep the
working of that Act under review: section 43(1)(c). This legislation has now been in
force, and kept under review, for more than a quarter of a century. No amendments
have been introduced with a view to making it clear that the prohibition in the
employment field extends to acts or omissions by employers after the employment
relationship has come to end.
    83 The question whether the legislation as originally enacted had that effect, or
whether employment must continue to subsist for a person to be "a person employed
by him" does not appear to have been raised until the point was argued for the first
time before the Employment Appeal Tribunal in Nagarajan v Agnew [1995] ICR
520. In the meantime in De Souza v Automobile Association [1986] ICR 514, 522H
May LJ felt able to say that the word "detriment" in section 4(2)(c) of the Race
Relations Act 1976 referred to the circumstances in which the person "thereafter has
to work". (My emphasis.) In Garland v British Rail Engineering Ltd (Case 12/81)
[1982] ICR 420 a female employee complained that she was being discriminated
against by her employers who operated a scheme which gave concessionary travel
facilities to employees and their families. This facility was available to employees
after their retirement, but only male employees had the benefit of it after retirement
for their families. An issue was raised as to the meaning to be given to the words
"provision in relation to death or retirement" in section 6(4) of the Sex
Discrimination Act 1975 in the light of article 119 of the EEC Treaty (now article
141 EC). It was held, following a reference to the European Court of Justice, that the
scheme was not covered by the exception in section 6(4) because these words should
not be construed so widely as to include a privilege which had existed during
employment and was allowed by the employer to continue after retirement. The
result was that the scheme was subject to the prohibition on discrimination imposed
by section 6(2)(a) of the Sex Discrimination Act 1975. An important feature of that
case, however, was that the employees were entitled to the benefit of the scheme
both before and after their retirement. The issue whether section 6(2) was apt to
cover things done or omitted to be done by the employer which could be attributed
only to a period after the end of the employment relationship was not raised in that
case.
    84 In Nagarajan v Agnew [1995] ICR 520 in which an ex-employee alleged that
he had been victimised by a bad reference from his former manager, the appeal
tribunal held that the natural meaning of the phrase "a person employed by him" in
section 4(2) of the Race Relations Act 1976 was that the employment must continue
to subsist for the prohibition to apply. Knox J said, at p 531, that the whole provision
was couched in the present tense and that, if it had been intended to include benefits,
facilities or services or detriments post employment, Parliament would certainly
have made it explicit that that extended meaning was the correct one and it had not
done so. In Post Office v Adekeye [1995] ICR 540 the Employment Appeal
Tribunal held, for the same reasons, that the tribunal had no jurisdiction to hear a
complaint about racial discrimination at an internal appeal hearing by a person who
was pursing an appeal against her dismissal. But Smith J said, at p 548E, that it was
unsatisfactory that the Act did not give a remedy to an ex-employee in such
circumstances. The decision by the appeal tribunal in that case was given on 15
February 1995.
    85 It was against this background that the Disability Discrimination Act 1995
was enacted. It received the Royal Assent on 8 November 1995. Once again the
legislation was preceded by a White Paper, Ending discrimination against disabled
people, January 1995 (Cm 2729). In paragraph 3.1 it was stated that ensuring full
and fair access to employment opportunities was a key element in the government's
policy of enabling disabled people to be fully active and independent members of
society. In paragraph 3.4 it was stated that a new right of non-discrimination in
employment was to apply "in all areas of employment, including recruitment,
dismissal, training, career progression, terms of employment and general treatment
at work". No indication was given in the White Paper that it was the intention to
extend this right to ex-employees to give them a right of non-discrimination by their
former employers after the employment relationship had come to an end. Much of
the structure and language of Part II of the Act which deals with discrimination by
employers follows closely the pattern which is to be found in Part II of the Sex
Discrimination Act 1975 and the Race Relations Act 1976, although there are some
important differences. In his general note to this Part of the Act the annotator in
Current Law Statutes states that the right not to be discriminated against "covers
employees and applicants for employment". In his note to section 55, which deals
with victimisation, he refers to the report of the decision of the Employment Appeal
Tribunal in Nagarajan v Agnew [1995] ICR 520 and states that by analogy with that
case it seemed likely that the protection against victimisation would be limited to
events occurring during the course of employment. This was a reminder, if any
reminder were needed, that attention had already been drawn to this problem prior to
the enactment of the 1995 Act.
    86 Parts VI and VII of the Disability Discrimination Act 1995 contain a number
of provisions which are designed to assist in the working out of the Act in practice.
Section 50 provides for the establishment of the National Disability Council among
whose duties was to advise the Secretary of State on matters relating to the operation
of the Act or of provisions made under it: section 50(2)(c). Section 53 provides that
the Secretary of State may issue codes of practice containing such practical guidance
as he considers appropriate with a view to eliminating discrimination in the field of
employment against disabled persons and persons who have had a disability and
encouraging good practice in relation to such persons. This provision was
implemented by the issuing of the Disability Discrimination Act 1995 Code of
Practice. Paragraph 2.8 answers the question "Who counts as an employee under the
Act?" It states that "employee" means anyone whose contract is within the definition
of employment in section 68 of the Act, which defines employment as employment
under a contract of service or of apprenticeship or a contract personally to do any
work, "whether or not, for example, he works full-time". The guidance which the
Code gives with regard to employment relates entirely to prospective and existing
employees. There is no indication that the Secretary of State thought that the Act
was designed also to deal with the position of ex-employees after the employment
relationship had come to an end, and no guidance whatever is offered on this issue.
    87 The conclusion which I would draw from this history is that up to this point
the issue as to whether the prohibition against discrimination should be, or had been,
extended to ex-employees had not been specifically addressed either by the
government or by the legislature. None of the advisory bodies established under
these Acts have asked to intervene in these appeals. Nor was your Lordships'
attention drawn to any published statements by any of them indicating their views,
either one way or on the other, on the questions which the appeals have raised. The
practical problems to which the competing interpretations of the relevant sections
may give rise in the field of employment as a whole have not been explored.
    88 In an area which is as sensitive and as wide-ranging in its effects as this one,
the absence of information of that kind is a significant omission. It inhibits the use
of the purposive approach in this case, as we have no clear guide to the scope which
was intended to be given to the enactments other than the words which they
themselves have used to describe it. The extent to which, if at all, the legislation was
intended to apply after the ending of the employment relationship was, of course, a
matter for the legislature. In this situation I believe that, subject to the guidance of
the European Court of Justice as to the scope to be given to the Sex Discrimination
Act 1975 in the light of Directive 76/207, your Lordships must approach these
questions by examining the language which Parliament used in order to discover
what its intention was when the statutes were enacted. It is to this task that I now
turn.

The language of the legislation: introduction

    89 The critical words in section 6(2) of the Sex Discrimination Act 1975 and
section 4(2) of the Race Relations Act 1976 are "employed by him". In section 4(2)
of the Disability Discrimination Act 1995 they are "whom he employs". The
question is whether these words extend to cases where the employment relationship
had come to an end at the time of the alleged act of discrimination.
    90 In Post Office v Adekeye [1997] ICR 110 this question reached the Court of
Appeal for the first time. This was an appeal from the decision of the Employment
Appeal Tribunal in Post Office v Adekeye [1995] ICR 540. The Court of Appeal
held that, in the absence of any express extension of the term "employee" to include
a person whose employment had ceased, the words "a person employed by him" in
section 4(2) of the Race Relations Act 1976 when given their ordinary and natural
meaning in their context excluded a person whose employment had ceased at the
time of the act of discrimination. Peter Gibson LJ, with whose judgment Pill and
Hirst LJJ agreed, said at p 118:
        "I accept the submission of Mr Greening for the Post Office that, giving the
    words 'in the case of a person employed by him' their ordinary and natural
    meaning in their context, those words mean, and can only mean, 'in the case of a
    person who is employed by him.' I note that that person is referred to in the next
    line as 'that employee' which is again suggestive of a present and not a past
    employee. Further, as Smith J pointed out [1995] ICR 540, 544-545, the
    definition of 'employee' in section 153 of the Employment Protection
    (Consolidation) Act 1978 (which re-enacted the definition in section 167(1) of
    the Industrial Relations Act 1971) was expressly extended to include a person
    whose employment had ceased. It is significant that there is no equivalent
    extension in the Act of 1976. I therefore conclude that the appeal tribunal was
    right to hold that section 4(2) of the Race Relations Act 1976 protects only those
    whose employment continues at the time of the act of discrimination."
    91 The Court of Appeal in each of the three cases which are now before your
Lordships appears to have had no difficulty in following and applying the decision
in Adekeye. In Rhys-Harper v Relaxion Group plc [2001] ICR 1176, 1185, para 25,
Buxton LJ said that he found entirely persuasive the conclusion of Peter Gibson LJ
that, when one read the words in section 4(2) of the Race Relations Act 1976 which
are the equivalent of section 6(2) of the Sex Discrimination Act 1975, it was
inescapable that what was addressed was events occurring during the actual course
of employment. After quoting the words of section 6(2)(a) he said, at p 1185, para
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 was 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."
He said that he agreed with Peter Gibson LJ's conclusion that strong indications of
post-contract activity within the events listed in that subsection, going beyond 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. In D'Souza v
Lambeth London Borough Council [2001] EWCA Civ 794, para 4 Schiemann LJ
said that the Court of Appeal at the time regarded the decision in Adekeye [1997]
ICR 110 as unsatisfactory but inescapable in the light of the wording of section 4 of
the Race Relations Act 1976. He also said that it was fair to point out that, despite
that expression of dissatisfaction, Parliament in passing the Race Relations
(Amendment) Act 2000, had not seen fit to alter section 4 of the earlier Act in any
relevant respect. In Kirker v British Sugar plc [2002] ICR 1124, 1132, para 23
Mummery LJ observed that the result of his reading of section 4(2) of the Disability
Discrimination Act 1995 was consistent with the decisions in Adekeye, Rhys-Harper
and D'Souza. But, as he said, at p 1132, para 25, the wording of section 4(2) of the
1995 Act is different from that in the two other discrimination Acts, so it would
have been possible for a different view to be taken as to its meaning in their case
without affecting the construction of the 1995 Act.
    92 In Kirker v British Sugar plc Mummery LJ said, at p 1130, para 14, that on
their plain and ordinary meaning the words of section 4(2) of the 1995 Act expressly
conferred protection from discrimination by an employer on only two classes of
disabled person: first, job applicants, and, secondly, persons "whom he employs".
He referred to the fact that the words "whom he employs" are couched in the present
tense, which naturally referred to a contractual employment relationship existing at
the date of the commission of any of the particular kinds of act referred to in the
subsection all of which were plainly referable to events occurring in the course of an
existing employment relationship. It was contended in that case that this result was
unsatisfactory, arbitrary and contrary to the statutory purpose of the enactment.
Mummery LJ responded to this argument in this way, at p 1131, para 21:
        "In my judgment, the meaning of the language of section 4(2) is so plain
    that, as a matter of construction, the court would not be justified in departing
    from its natural meaning in order to avoid the predicted consequences. I would
    add that some surprising consequences might be thought to flow from the
    construction of section 4(2) proposed by the applicants. For example, a disabled
    employee, who was fairly dismissed for misconduct after a month of
    employment, would be entitled for the rest of his life to make claims of
    discrimination and victimisation against his former employer who would be
    potentially liable, even for subconscious acts of discrimination and victimisation
    (see Nagarajan v London Regional Transport [1999] ICR 877) in respect of post-
    termination acts committed many years later, such as the provision or non-
    provision of a reference."
    93 In contrast to the position which has been adopted by the Court of Appeal,
Morison J has made his disgreement with the decision in Adekeye clear on at least
two occasions. In Coote v Granada Hospitality Ltd (No 2) [1999] ICR 942, a case
under the Sex Discrimination Act 1975 which was decided following a reference to
the European Court of Justice, he said, at p 949, that it seemed to the appeal tribunal
that the present tense would have been quite apt had the section been intended to
apply to former employees since what is made unlawful is a present act of
discrimination. He summed the position up, at p 950:
         "We have not been persuaded that it could be said that the Court of Appeal's
    decision was so mistaken (per incuriam) that it need not be followed. We quite
    see the force of the criticisms made of it. Indeed, we would go further and
    respectfully say that we disagree with it. But the doctrine of precedent requires
    us to follow it and, had it been applicable to this case, we would have done so."
In D'Souza v Lambeth London Borough Council (unreported) 27 June 2000, he said
in para 6:
         "It seems to us that we are bound by the decision ofAdekeye which must be
    faithfully followed, although we do so without relish. We can see a strong
    argument for adopting a purposive approach to section 4 and make it elastic
    enough to cover acts of discrimination against former employees. The
    employment relationship, in the most general sense, outlives the contractual
    relationship: there are references, pension matters, sports clubs and other post
    employment events which links an ex employee with his former employer. It
    would be intolerable if an employer could blacken the former employee in the
    market place because he had successfully sued his former employer in a tribunal.
    If people are frightened by what happens to them if they make a complaint, the
    evil of discrimination will be more likely to live on. Not all perks and privileges
    for retired staff could be considered contractual and it is difficult to understand
    why, if they are dealt with in a discriminatory way, they should not be covered
    by the Act, since there may be no other available remedy."
    94 Against this background which indicates that there are powerful views on
either side of the argument, I now turn to the language of the statutes themselves. I
shall take them in their historical order, although it will not be necessary to say
much about the Race Relations Act 1976 as the wording which it uses is so close to
that of the Sex Discrimination Act 1975.

The language of the legislation: the words themselves

    95 What is the meaning which is to be given in its context to the phrase
"employed by him" in section 6(2) of the Sex Discrimination Act 1975 and section
4(2) of the Race Relations Act 1976 and to the phrase "whom he employs" in the
Disability Discrimination Act 1995? I propose to examine this question by stages. I
shall start with the wording of section 6(2) of the 1975 Act itself. Then I shall look
at other provisions in order to determine how the critical phrase falls to be read in its
context. Then I shall look at section 4(2) of the 1976 Act in its context. I shall deal
finally with the slightly different wording of section 4(2) of the 1995 Act in its
context.

(a) Sex Discrimination Act 1975, section 6(2): "employed by him"

     96 The word "employed" can serve either as an adjective or as a participle. If it
is to serve as an adjective it will be attached to a noun. Here there is no noun, so at
least one can say that it is being used in the subsection as a participle. But if it is to
serve as a participle, the question *897 whether it is being used as a past participle
or as a present participle will depend on the tense of the verb with which it is
associated. Here there is no verb. That is not to say that a verb cannot be read in to
the subsection. But this requires an understanding of the intention of Parliament, and
the participle itself gives no indication as to the tense. So the phrase "employed by
him" without more is ambiguous.
    97 As soon as one beings to examine the context, however, the ambiguity beings
to recede. The phrase "in the case of a woman employed by him at an establishment
in Great Britain", taken together with the words "in the way he affords her access to
opportunities for promotion, transfer or training" in the first part of paragraph (a),
indicates beyond doubt that existing employees fall within the phrase "employed by
him". But it also suggests that it is only existing employees who do so. This
impression is reinforced by the words "by dismissing her" in paragraph (b). If
Parliament had intended it to deal with ex-employees as well, one would have
expected it to have said so. The references to "any other benefits, facilities or
services" in paragraph (a) and "subjecting her to any other detriment" in paragraph
(b) are not so plainly related to things done to existing employees. They could
include acts of discrimination after the employment has come to an end, and it is by
no means impossible for the subsection as whole to be read in this way. But it is not
obvious that this is what Parliament intended. Elsewhere in section 6, subsection (7)
states that subsection (2) does not apply to benefits, facilities or services of any
description if the employer "is" concerned with the provision of these things to the
public, or to a section of the public comprising the woman in question. It then sets
out three exceptions to this provision--(a) the provision differs in a material respect
from the provision of these things by the employer to "his employees", (b) the
provision of these things to the woman "is regulated" by her contract of employment
and (c) they relate to training. This provision appears to have been designed on the
assumption that the situation with which subsection (2) is dealing is that which
applies where the contract of employment is still on foot, not after it has come to an
end.
    98 Two other provisions in first group of sections in Part II of the 1975 Act
which deal with employers indicate that Parliament did not address itself to the
position of their ex-employees. Section 9 makes it unlawful for a person to
discriminate against a woman who "is a contract worker". Among the things he may
not do is discriminate against her in the provision of "any benefits, facilities or
services" or by subjecting her to "any other detriment" --phrases that are repeated
from section 6(2). An exception is made for benefits, facilities or services if the
person "is" concerned with the provision of these things to the public, as in section
6(7). Section 10 1deals with the meaning of employment at an establishment in
Great Britain in terms which make use throughout of the present tense. The second
group of sections in Part II deals with discrimination by other bodies. Section 11
deals with partnerships. It makes it unlawful for a firm to discriminate against a
woman who is seeking a position as partner and against a woman "who already
holds that position". But it makes no mention of women who are no longer partners
but who may--for example--be seeking a reference. Section 12, which deals with
membership of trade unions, follows the same pattern. It protects a woman who is
applying for membership and a woman who "is" a member of the organisation. But
it makes no mention of a woman who is no longer a member.
    99 I would hold that, taken overall and when given their ordinary meaning in
their context, these provisions indicate that the phrase "employed by him" in section
6(2) of the 1975 Act includes a woman who is employed by the alleged
discriminator but that it does not include a woman who is no longer employed by
him.
(b) Race Relations Act 1976, section 4(2): "employed by him"

    100 I can see no grounds for giving a different meaning to the phrase in this
context from that which I would give to it in section 6(2) of the Sex Discrimination
Act 1975. The wording of section 4(2) of the 1976 Act is precisely the same except
that it refers to a person where section 6(2) in the 1975 Act refers to a woman. The
wording of section 4(4) of the 1976 Act matches that of section 6(7) of the 1975
Act, and sections 7, 8, 10 and 11 of the 1976 Act deal with contract workers, the
meaning of employment at an establishment in Great Britain, partnerships and
membership of trade unions in the same way as these matters are dealt with in the
corresponding sections of the 1975 Act.
    101 So I would hold that the phrase "employed by him" in section 4(2) of the
1976 Act includes a person who is employed by the alleged discriminator, but that it
does not include a person who is no longer employed by him.

(c) Disability Discrimination Act 1995, section 4(2): "whom he employs"

    102 The first thing that strikes one about the language of this subsection is that it
does not use the participle "employed". It uses instead the verb "employs". As my
noble and learned friend Lord Rodger of Earlsferry observed in the course of the
argument, this was an odd choice of language if the draftsman's instructions were to
cover the position of persons who were no longer employed by the alleged
discriminator. And it was odd too, if those were his instructions, that this was not
picked up during the passage of the Bill through Parliament. So in this case one
starts from the position that the ordinary and natural meaning of the phrase is that it
includes a person who is employed by the alleged discriminator, but that it does not
include a person who is no longer employed by him. The question is whether there
is anything in the context which requires that the phrase be read differently so that it
includes a person who is no longer employed by the alleged discriminator.
    103 I can find nothing in section 4(2) itself which points to a different
conclusion. Section 4(3) of the 1995 Act, like its counterparts in sections 6(7) and
4(4) of the 1975 and 1976 Acts, is cast in the present tense. So too are sections 12
and 13 of the 1995 Act which deal with discrimination against contract workers and
by trade organisations. There are number of other more subtle indications that the
focus of this Act was on applicants for employment and those in employment, not
on those whose employment has come to an end: see, for example, the wording of
the exemption for small businesses in section 7. I can find no support anywhere else
in the Act for the argument that section 4(2) extends to persons who are no longer in
the employment of the alleged discriminator.


Community law

    104 In Ms Rhys-Harper's case it is necessary, as I said earlier (see paragraph 76),
to take account of the fact that the Sex Discrimination Act 1975 gave effect in
domestic law to Directive 76/207. The conclusion which one draws from this
exercise may have implications for all the other cases too, as I shall explain later.
The Directive does not, of course, have direct effect on the relationship between a
woman and her employer. The third paragraph of article 249 of the EC Treaty
(formerly article 189 EEC) provides that a Directive shall be binding, as to the result
to be achieved, upon each member state to which it is addressed but that it shall
leave to the national authorities the choice of form and method. So a Directive
works its way into our domestic system by means of the legislation which is
designed to give effect to it. It is then for the courts to interpret that legislation, as
far as possible, in a way that gives effect to this country's obligations under the
treaty.
    105 In Litster v Forth Dry Dock & Engineering Co Ltd [1989] ICR 341, 354
Lord Oliver of Aylmerton said that the approach to the construction of primary and
subordinate legislation enacted to give effect to the United Kingdom's obligations
under the EEC treaty was not in doubt:
        "If the legislation can reasonably be construed so as to conform with those
    obligations--obligations which are to be ascertained not only from the wording
    of the relevant Directive but from the interpretation placed on it by the European
    Court of Justice at Luxembourg--such a purposive construction will be applied
    even though, perhaps, it may involve some departure from the strict and literal
    application of the words which the legislature has elected to use."
In Webb v Emo Air Cargo (UK) Ltd [1993] ICR 175, 186 Lord Keith of Kinkel
said:
        "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 ..."
He referred, at p 187, to the way in which the European Court of Justice in
Marleasing SA v La Comercial Internacional de Alimentación SA (Case C-106/89)
[1990] ECR I-4135 expressed the obligation which is binding on the courts in
applying national law, whether the provisions in question were adopted before or
after the Directive:
        "As the European Court of Justice said, a national court must construe a
    domestic law to accord with the terms of a Directive in the same field only if it is
    possible to do so. That means that the domestic law must be open to an
    interpretation consistent with the Directive whether or not it is also open to an
    interpretation inconsistent with it."
The Court of Justice took the opportunity in Coote v Granada Hospitality Ltd (Case
C-185/97) [1999] ICR 100, 111-112, para 18 to restate this point:
        "As follows from Marleasing SA v La Comercial Internacional de
    Alimentación SA (Case C-106/89) [1990] ECR I-4135, 4159, para 8 and Wagner
    Miret v Fondo de garantÍa salarial (Case C-334/92) [1993] ECR I-6911, 6932,
    paras 20 and 21, in applying national law, in particular legislative provisions
    which, as in the present case, were specially introduced in order to implement
    the Directive, the national court is required to interpret its national law, so far as
    possible, in the light of the wording and the purpose of the Directive in order to
    achieve the result pursued by the third paragraph of article 189 of the EC
    Treaty."
    106 The phrase "employed by him" in section 6(2) of the Sex Discrimination
Act 1975 is, as I have said, ambiguous. I think that it is possible to construe it as
referring to a woman who is no longer employed by the alleged discriminator as
well as to a person who is employed by him, although I do not think that that is what
the phrase means when domestic rules of construction are applied to it and it is taken
in its context. So the question which arises in Ms Rhys-Harper's case is whether
Directive 76/207, as interpreted by the Court of Justice, requires us to adopt that
possible construction.
     107 There is nothing in the wording of the Directive which makes it plain to the
domestic reader that its purpose was to extend the principle of equal treatment for
men and women as regards access to employment to cases where the employment
relationship has come to an end. It refers in its long title to "the implementation of
the principle of equal treatment for men and women as regards access to
employment, vocational training and promotion, and working conditions". The
preamble too refers to access to employment, training and promotion and to
"working conditions, including pay", as does article 1 which describes the purpose
of the Directive. One finds here the familiar categories of people seeking
employment, training or promotion on the one hand and those who are in work on
the other. Nothing is said about ex-employees.
     108 The articles which are most directly in point with regard to the question
what scope is to be given to the expression "working conditions" are these:

"Article 5

           "(1) 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 ...

"Article 6

      "Member states shall introduce into their national legal systems such
   measures as are necessary to enable all persons who consider themselves
   wronged by failure to apply to them the principle of equal treatment within the
   meaning of articles 3, 4 and 5 to pursue their claims by judicial process after
   possible recourse to other competent authorities.

"Article 7

       "Member states shall take the necessary measures to protect employees
   against dismissal by the employer as a reaction to a complaint within the
   undertaking or to any legal proceedings aimed at enforcing compliance with the
   principle of equal treatment.

"Article 8

         "Member states shall take care that the provisions adopted pursuant to this
    Directive, together with the relevant provisions already in force, are brought to
    the attention of employees by all appropriate means, for example at their place
    of employment."
But here too no mention is made of the situation where the employment relationship
is at an end.
    109 What then is to be said about the purpose of Directive 76/207? Here one
must turn for guidance to the decision of the European Court of Justice in Coote v
Granada Hospitality Ltd (Case C-185/97) [1999] ICR 100. In that case, after settling
a sex discrimination claim against her employer, the applicant had left the
employer's employment by mutual consent. She then asked the employer to supply a
reference to the employment agency through which she was trying to find another
job. This was refused. She then brought proceedings against the employer under
section 4 of the Sex Discrimination Act 1975, which deals with victimisation, in
which she alleged that this response was a reprisal for her previous claim of sex
discrimination.
    110 The Court of Justice saw this as an issue of judicial protection within the
meaning of article 6 of Directive 76/207. It explained its approach, at p 112, para 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 provide references as a reaction
    to proceedings brought to enforce compliance with the principle of equal
    treatment within the meaning of the Directive."
It went on to develop this point in the following paragraphs.
    111 The court noted, in para 20, that it followed from article 6 that the member
states must ensure that the rights conferred by the Directive could be effectively
relied on before the national courts by the persons concerned. It observed, at para
21, that the requirement laid down by that article reflected a general principle of law
which underlies the constitutional traditions common to the member states and
which was also enshrined in article 6 of the Convention for the Protection of Human
Rights and Fundamental Freedoms. It emphasised, at para 23, that article 6 of the
Directive was an essential factor for attaining the fundamental objective of equal
treatment for men and women which, as the court had repeatedly held, was one of
the fundamental human rights whose observance it had a duty to ensure. It said, at p
113, para 24, that the principle of effective judicial control which article 6 of the
Directive lays down would be deprived of an essential part of its effectiveness if it
did not cover measures which the employer took as a reaction to legal proceedings
brought by the employee with the aim of enforcing the principle of equal treatment.
The conclusion which it expressed in para 25 was that it was not possible to accept
the argument that such measures did not fall within the scope of the Directive if they
are taken after the employment relationship has ended.
    112 It would have been possible for the court to find a more direct answer to the
problem in article 5 of the Directive regarding working conditions as indicated by
Advocate General Mischo in his opinion, at p 104, paras 11-12. He said that an
employer's appraisal of the quality of the services rendered fell entirely within the
scope of the relationship between employee and employer, and that the service
rendered by the employer in providing the employee with what he described as "the
parting gift" of a reference could not be severed from the employment relationship.
He also said that the conditions regarding dismissal were to be construed broadly, as
was clear from Burton v British Railways Board (Case 19/81) [1982] ICR 328, 348,
para 9 where the court said that in the context of the Directive the word "dismissal"
must be widely construed so as to include termination of the employment
relationship between a worker and his employer, even as part of a voluntary
redundancy scheme. But the court did not go down that road. The principle
underlying its approach was the right of a person who claimed to have been
discriminated against by her employer to obtain an effective remedy.
     113 The conclusion which I would draw from this case is that the interpretation
placed on Directive 76/207 by the Court of Justice does not require your Lordships
to read the words "employed by him" in section 6(2) of the Sex Discrimination Act
1975 as including each and every case where the employment relationship has come
to an end. If that reading of those words were to be adopted it would enable all ex-
employees to claim that they were entitled to the benefit of that subsection. It would
extend the principle of equal treatment to them as a class, without regard to the
question which was of concern to the court which was that the rights conferred by
the Directive could be relied upon effectively in the courts. It would also raise
problems which the court did not address about the scope of the employer's liability.
If the protection were to be extended to ex-employees as a class without some words
of qualification, employers would be exposed to a potential liability for unconscious
and perhaps trivial acts of discrimination for the rest of the employee's life. There is
no indication in the court's decision that it saw this as one of the purposes of the
Directive. The Advocate General's description of a reference as a "parting gift"
which could not be severed from the employment relationship suggests that he
regarded the expression "working conditions" in article 5 as referring to things that
fell within the employment relationship.
     114 It is to be noted however that the expression which the European Court used
in Coote [1999] ICR 100, 112, para 19 to describe the period which falls within the
scope of the Directive was "the employment relationship". Buxton LJ used the same
phrase in Rhys-Harper v Relaxion Group plc [2001] ICR 1176, 1185, para 26 when
he said that he agreed with Peter Gibson LJ's conclusion in Post Office v Adkeye
[1997] ICR 110, 117G that strong indications of post-contract activity would be
needed within the events listed in section 6(2)(a) in order to compel a reading of "a
person employed by him" in what he described as "the unnatural sense" of a person
previously employed. But, as my noble and learned friend Lord Scott of Foscote has
pointed out, the relationship between the employer and the employee does not
necessarily come to an end at the precise moment when their contract terminates.
There may well be things that need to be done to bring their relationship to an end
after the contract has terminated. There may also have been agreements entered into
during the employment about benefits to be enjoyed afterwards, such as the
continued use of sports facilities, which remain to be implemented or there may be
evidence that it is the employer's practice to allow the continued use of such
facilities. At that stage the employer will, of course, be dealing with someone who
strictly speaking is a former employee. But the fact that this description applies will
not of itself remove that person from the scope of the Directive, so long as the
transactions that remain to be completed are attributable to a continuation of their
relationship as employer and employee.
     115 I think that the approach which is indicated by the decision in Coote [1999]
ICR 100 strikes a reasonable balance between the interests of the employee after the
employment is ended and the risk to the employer of being exposed to claims
indefinitely. I would extend the same meaning to the words "employed by him" in
section 6(2) of the Sex Discrimination Act 1975 and, as I see no grounds for giving
a different meaning to the same words where they appear in section 4(2) of the Race
Relations Act 1976, to those words in that context also. That being so, as there are
no rational grounds for a different approach to be taken to the use of similar
language in the context of discrimination against disability, I would extend the same
meaning to the words "whom he employs" in section 4(2) of the Disability
Discrimination Act 1995. Whether or not there is still an employment relationship
will be for determination according to the facts of each case.
    116 I would therefore, with respect, differ from the decision of the Court of
Appeal in Adekeye's case [1997] ICR 110 that the words "a person employed by
him" in section 4(2) of the Race Relations Act 1975 did not apply to a person who
was no longer an employee. That approach, which confines the scope of the
protection strictly to the duration of the contract, seems to be out of keeping with the
approach of the European Court of Justice in Coote when it used the expression "the
employment relationship". I too would hold that that case was wrongly decided.

Conclusions

(1) Rhys-Harper v Relaxion Group plc

    117 The issue in this case, as focused in the agreed statement of facts and issues,
is whether, on a proper construction of section 6(2) of the Sex Discrimination Act
1975, an employment tribunal has jurisdiction to entertain a claim of sex
discrimination where the act or conduct complained of occurred after the
employment relationship has ended. In his opening remarks Mr Reynold for the
applicant said this was what her case was about. He said that her complaint was that
she had been sexually discriminated against after her employment had come to an
end because the respondent's general manager, Mr Adamson, failed to investigate
properly a complaint which she made at the hearing of her appeal against her
dismissal on 9 November 1998 that she had been harassed on the ground of her sex
by Mr Osborn. Mr Reynold did not suggest that Mr Adamson's investigation into
this complaint had any bearing on his decision that there were sufficient grounds for
the applicant's dismissal and that Mr Osborn's decision to dismiss her should stand.
    118 I would hold that section 6(2) of the 1975 Act does not apply to the
applicant's complaint of discrimination as so presented. What is alleged is a single
and self-contained act of discrimination, which is said to have occurred when the
applicant was no longer employed by the respondent. As for the wider question
whether it was attributable to a continuation of their employment relationship, I
would hold that there is nothing in this way of presenting her case which links the
alleged act of discrimination by Mr Adamson to the conditions of her employment.
The applicant did not ask Mr Adamson to investigate her complaint, and there has
been no suggestion that she had any right to do so. She was no longer employed in
the respondent's premises, so she was not in a position to benefit in any way from
any decisions that Mr Adamson might have taken as a result of that investigation.
Nor is there anything in it that links Mr Adamson's alleged failure to investigate this
complaint properly to the appeal and his decision to confirm her dismissal.
    119 But Mr Reynold sought to present her case in a different way when he was
replying to Mr Reade for the respondent. He based this presentation of it on the fact
that the applicant received two letters from Mr Adamson on the same day. One of
these letters dealt with the outcome of the applicant's appeal against her dismissal by
Mr Osborn. In the other Mr Adamson said that the allegation which the applicant
made at the hearing of her appeal of sexual harassment by Mr Osborn had been
investigated and that there was insufficient evidence to establish a case against him.
Mr Reynold said that the fact that these two letters arrived together showed that Mr
Adamson's the decision in the appeal was linked to his investigation into the
applicant's allegation. The allegation had arisen in the course of her appeal against
her dismissal. What the applicant was alleging therefore was bias on the part of Mr
Adamson as the decision-taker in her appeal against her dismissal. Mr Reynold said
that it was not realistic to divorce the appeal procedure from the ambit of the
allegation of sexual harassment. The reality was that they were part and parcel of the
same thing.
    120 This presentation of the applicant's case makes it necessary to examine the
history of her allegations against Mr Osborn more closely. According to a transcript
of the notes of evidence of the chairman of the employment tribunal, the applicant
said in her evidence that she did not bring the issue of sexual discrimination up
when she attended the disciplinary hearing on 12 October 1998 which was
conducted by Mr Osborn. She said that this was because he was the perpetrator and
because his girl friend was there. But the fact is that, for whatever reason, she did
not mention this issue at the hearing. Moreover, she made no mention of sexual
discrimination in her letter of 19 October 1998 in which she appealed against Mr
Osborn's decision to dismiss her on the ground of misconduct. It was not until she
saw Mr Adamson at the appeal hearing on 9 November 1998 that she mentioned the
issue for the first time. She mentioned it again when she was setting out the details
of her complaint in her application to the employment tribunal. She said that she was
putting forward a complaint of sexual harassment and constructive dismissal against
Mr Osborn, and gave details of various problems of this nature which she had
encountered with him during her employment. At the end of this document she said
that she felt that she had been sacked for misconduct once she had reported the
sexual harassment. But the history which I have outlined shows that she did not
make any such report until she mentioned the matter to Mr Adamson in the course
of the hearing of her appeal against her dismissal.
    121 Although Mr Reynold did not put her case quite in these terms, it appears to
me in the light of this further background that the case which he was seeking to put
forward in his reply was that the applicant had been victimised within the meaning
of section 4 of the Sex Discrimination Act 1975 by Mr Adamson in his conduct of
the hearing of the appeal against her dismissal. Mr Reynold said that the applicant's
case was that Mr Adamson's decision in the appeal was biased against her because
of the complaint which she had made. An employment tribunal does not have
jurisdiction under section 63 of the Sex Discrimination Act 1975 to investigate an
allegation of bias on the part of the decision-taker in an appeal by an employee
against her dismissal. But it does have jurisdiction under that section to deal with a
complaint that she has been the victim of an act of discrimination by way of
victimisation within the meaning of section 4 of the 1975 Act which is unlawful
under Part II of the Act.
    122 In my opinion there is no doubt that an employment tribunal has jurisdiction
to entertain a complaint of discrimination by way of victimisation which relates to
conduct by an employer in his determination of an appeal by a woman against her
dismissal from his employment. Article 7 of Directive 76/207 requires member
states to take the necessary measures to protect employees against dismissal by the
employer as a reaction to a complaint within the undertaking aimed at enforcing
compliance with the principle of equal treatment. Section 6(2)(b) of the 1975 Act
makes it unlawful for an employer to discriminate against a woman by dismissing
her. Discrimination within the meaning of section 6(2) includes discrimination by
way of victimisation as defined by section 4. Section 6(2)(b), when read together
with section 4, provides the protection which article 7 requires. An act of dismissal
by way of victimisation is made unlawful by section 6(2)(b). So there is no need
here for the applicant to rely on the obligation to ensure effective judicial control for
the protection of the rights provided by the Directive arising from article 6 which the
European Court of Justice described in Coote v Granada Hospitality Ltd (Case C-
185/97) [1999] ICR 100. The issues of statutory interpretation on this presentation
of her case appear to me to be to be quite straightforward. The applicant's difficulty
lies in the fact that her complaint that she was victimised by Mr Adamson in the
course of the proceedings regarding her dismissal was not presented in this way at
any stage in these proceedings until it was mentioned by Mr Reynold in his closing
address to your Lordships.
    123 With some hesitation I have come to the conclusion that the events which
happened in her case, as now presented, were all attributable to the employment
relationship. There are various ways in which the facts can be analysed. But
however this is done it would, as Mr Reynold said, be unrealistic to ignore the fact
that the victimisation of which she complains was part and parcel of the events that
were attributable to her employer's act in dismissing her. The stage at which it could
be said that the employment relationship had ended had not yet been reached. I
would allow this appeal.

(2) D'Souza v Lambeth London Borough Council

    124 Mr D'Souza's complaint is of racial discrimination and victimisation
contrary to section 4(2), or alternatively section 4(1), of the Race Relations Act
1976. The act of which he complains is the failure by his former employer to
reinstate him when ordered to do so by the employment tribunal.
    125 I would hold that section 4(2) does not apply to his case, as it is plain that
the act of which he complains occurred after the employment relationship had come
to an end. I would hold that section 4(1) does not apply to his case either. His
argument was that the decision by his former employer not to reinstate him when
ordered to do so by the employment tribunal under what is now section 113(a) of the
Employment Rights Act 1996 was a refusal or a deliberate omission to offer him
that employment within the meaning of section 4(1)(c) of the 1976 Act. I would
reject that argument. His former employer was not being required to offer him that
employment. What it was ordered to do by the tribunal was simply to reinstate him
on the terms which the order itself specified. Failure to comply with an order for
reinstatement by the tribunal will result in an award of compensation under the
statute. There is no other remedy. What the 1996 Act does is to lay down a statutory
procedure by which the employee obtains the benefit of the original contract. I
would dismiss this appeal.

(3) Kirker v British Sugar plc and others

    126 These are all cases where it is said that allegations were made under section
4(2) of the Disability Discrimination Act 1995 of discrimination and victimisation
after the employment relationship had come to an end. I would hold that the phrase
"whom he employs", which qualifies the whole of that subsection, does not make it
unlawful for an employer to discriminate against a disabled person who is no longer
in his employment and with whom he no longer has an employment relationship. As
to the facts, the question in each case is whether the interval in time was too long for
it to be reasonable, in the light of all the surrounding circumstances, to conclude that
there was still an employment relationship.
     127 A period of about one year and ten months had gone by before Mr Jones
asked for the return of his business cards. The other cases all relate to requests for
references. I consider that these cases all lie close to the limits of what comes within
the boundaries of the employment relationship. A request which is made after a
short interval may well be regarded as having been made while there was still an
employment relationship. But it may well be thought to be unreasonable to expose
employers to the risk of proceedings before an employment tribunal after a long
interval. It is one thing to hold the door open, as it were, for this purpose for a few
weeks or possibly for a few months. It is quite another for an employer to be
compelled to provide references for an ex-employee, perhaps several times over, in
response to repeated requests long after the employment has ended.
     128 The solution to this problem may well lie, as my noble and learned friend,
Lord Nicholls has pointed out, with employers in the first instance. If it is the
employer's practice to give references to former employees after such a long
interval, then the employer must be careful not to discriminate. If the employer's
practice is to cease giving references after a given interval, then the refusal of a
reference to a particular individual after that interval has passed will not, without
more, be discriminatory. The "chilling effect" of these propositions is regrettable but
inescapable. It is by no means unknown for employers to seek safety by adopting
practices in the giving of references which are as parsimonious as possible. For
smaller employers, of course, the number of former employees asking for references
may be too few to enable them to develop a practice which will protect them against
vexatious claims. In their case employment tribunals will need to be particularly
vigilant.
     129 With some hesitation I have come to the view that, although these cases lie
close to the borderline, it has not been shown on the facts which are available so far
that the employment tribunals do not have jurisdiction to consider them. For this
reason I would allow these appeals and remit the cases to the tribunals for further
consideration.

LORD HOBHOUSE OF WOODBOROUGH

    130 My Lords, these appeals concern the proper understanding of the provisions
of three anti-discrimination Acts and their application to the six cases concerned.
The courts below were bound by the Court of Appeal decision in Post Office v
Adekeye [1997] ICR 110. It is necessary to decide whether that case was rightly
decided. The appeals all came before the House as cases relating to the jurisdiction
of employment tribunals.
    131 But, if one is to reject the bright line rule stated in Adekeye and adopt a less
absolute criterion, it becomes necessary, in considering the disposal of the individual
appeals, to consider whether by that criterion the tribunal should have accepted
jurisdiction. This involves ascertaining what claim or claims it was that the
aggrieved party made in the tribunal proceedings and to what extent they were
rendered inadmissible by failure to present the claim to the tribunal within the period
of three months beginning when the act complained of was done: see, for example,
section 76(1)(a) of the Sex Discrimination Act 1975. A feature of discrimination
cases in the employment field is that the obvious way of formulating a claim may be
ruled out because the complainant has (without sufficient excuse) allowed the three
months time limit to expire without bringing proceedings. The complainant then has,
artificially, to find some act within the three month period on which to build the
claim. (This point is particularly relevant to the disposal of the Rhys-Harper appeal.)
     132 The scheme which I will follow in this opinion is, first, to make some
general observations about anti-discrimination legislation, then to discuss the
Adekeye point, then, the victimisation point and then, finally, to apply my
conclusions to the individual cases.

Anti-discrimination legislation

    133 The Sex Discrimination Act 1975 broke new ground for English domestic
law and adopted a fairly cautious approach. The criteria for discrimination and the
scope of the Act's application were fairly narrowly drawn. It is not right to view it,
which was the invitation of the applicants, as creating a comprehensive anti-
discrimination scheme. The Race Relations Act of the following year was in the
same mould but at the same time adopted a more generalised criterion of unlawful
discrimination. The former Act had said: "a person discriminates against a woman if
on the grounds of her sex he treats her less favourably than he treats or would treat
*908 a man." The latter Act uses the phrases "on racial grounds" and "other
persons" which do not depend upon the racial group to which the actual complainant
personally belongs or the racial group to which the comparator belongs provided the
relevant racial ground would not apply to him but is otherwise comparable. For
example, the relevance of race may be to the fact that the complainant is married to
a person of a different race or has adopted children of a particular race. The drafting
of the Disability Discrimination Act 1995 also shows signs of a developing
confidence of those responsible for anti-discrimination legislation and refers to the
"reason" for treating someone less favourably. The same developments are to be
observed in other provisions of the three Acts. In construing each of these Acts and
assessing and understanding decisions made under one or other of them, it is
necessary, if errors are not to be made, to have regard to the actual wording of the
relevant Act as is illustrated by what I have said about the different criteria used in
the 1975 and 1976 Acts.
    134 Another self-evident point is that the drafting of each Act had to be adapted
to the type of discrimination at which it is directed. Thus the Disability
Discrimination Act 1995 inevitably has to relate to direct discrimination and include
a defence of justification. It is coupled with qualified obligations to make special
arrangements for those with disabilities, including, in limited circumstances,
adapting buildings. Similarly, each Act makes specific but different provision for its
scope of application and those it will affect. But each Act also has a similar structure
and, as between the 1975 and 1976 Acts, some provisions are expressed in the same
or very similar words. This is particularly so in relation to the "employment field"
provisions. I agree that these statutes should be read as contributions to a developing
scheme of anti-discrimination law and such words should not without good reason
be given a different reading as between one of the statutes and another. They are not
statutes to be formally "read with" each other but they are statutes which reflect a
consistent (though developing) legislative policy. The wording of the "employment
field" provision in the 1975 and 1976 Acts is in a relevant respect slightly different
from the 1995 Act which, instead of using the phrase "employed by him", uses the
phrase "whom he employs". None of the counsel in these appeals submitted that a
distinction should be made between the Acts on this ground. I consider that they
were right. I will accordingly use the 1975 Act as the reference point save where it is
necessary to refer to the Acts separately.
    135 The structure of the relevant parts of each of the Acts is also similar. They
start with a definition of the relevant test of discriminatory conduct: Part I in the
1975 Act. They continue by defining (with elaborations or qualifications) the
"fields" in which the Act is to apply: Parts II and III of the 1975 Act. They then add
provisions making some related acts unlawful and granting some general exceptions
to the application of the "fields": Parts IV and V of the 1975 Act. The words directly
involved in the Adekeye point are in the Part defining the "employment field". All
these cases were said to arise in the employment field, which in all three Acts is the
primary field of application. The victimisation point arises from provisions which in
the 1975 and 1976 Acts appear in the Part defining discriminatory conduct but
which, in the 1995 Act, are placed in the later Part which (inter alia) makes other
related acts unlawful (Part VII). In all three Acts the actual wording of the
victimisation provision is similar and is by way of extending the definition of
"discrimination". In relation to sex discrimination, what is involved in victimisation
has been the subject of a decision of the European Court of Justice in Coote v
Granada Hospitality Ltd (Case C-185/97) [1999] ICR 100 applied by Morison J in
Coote v Granada Hospitality Ltd (No 2) [1999] ICR 942, to which I will revert later.

Post Office v Adekeye [1997] ICR 110

     136 Adekeye was an employment field case under the 1976 Act. It was therefore
essential for the complainant to show that the employment tribunal had jurisdiction
under Part II of the 1976 Act. Her complaint was that she had been summarily
dismissed by her employers, the Post Office, on racial grounds and that, on the same
grounds, she had again been discriminated against when she had appealed against
her dismissal under the Post Office's internal appeal procedure and her appeal had
been dismissed. Her complaint against her dismissal was out of time but her
complaint relating to her appeal was not. The Court of Appeal referring to the
wording of section 4(2) of the 1976 Act formulated the question to be answered as
being: could a person who had been dismissed still be described as "a person
employed by" the person who had already dismissed him? They adopted a simple
temporal test: did the relevant act come before or after the termination of the
employment? The Court of Appeal, following an earlier decision by the
Employment Appeal Tribunal in Nagarajan v Agnew [1995] ICR 520, concluded
that being employed and being dismissed were mutually inconsistent states. The
Court of Appeal accordingly held that the employment tribunal had no jurisdiction.
It was this decision by which the courts below were bound and which caused them
to decline to entertain the applicants' various applications.
     137 Was Adekeye right? As a matter of the simple language of section 4(2) and
its equivalent in the 1975 and 1995 Acts, there is much to be said for it and it
provides a rule of simple application. But a different view is possible. The words are
not used to refer to a status but to a connection. Under the Acts the discriminatory
treatment does not have to be an infringement of the complainant's contractual
rights. It can simply be less favourable treatment than that afforded to others in a
like position. To introduce at this point into the structure of the Acts a criterion of
strict contractual status would be anomalous having regard to their scheme as a
whole. There is the further recommendation for the connection approach that it
avoids some of the individual anomalies as illustrated by the facts of Adekeye itself
and referred to in the judgment in that case. Why distinguish between the
discriminatory dismissal and the discriminatory conduct during the internal appeal
against that dismissal? Indeed, the complainant may have a contractual right to
invoke the appeal procedure and to a fair consideration of his or her appeal. The
remedy for which the complainant may be asking in that appeal procedure is the
revocation of the dismissal decision. To construe the Act so that the dismissal can be
the subject of a discrimination complaint but the handling of the appeal cannot is
irrational and unnecessary. The scheme of the Acts and the context in which the
relevant words occur suggest that, rather than importing a crude temporal test, they
describe the substantive scope within which the various duties not to discriminate
under the Acts apply in the employment field.
    138 But that still leaves a problem. The purpose of the relevant Part of these
Acts is to define the scope of their operation (and consequentially, in relation to the
"employment field", the jurisdiction of employment, formerly industrial, tribunals).
One therefore needs, before one can properly discard the Adekeye interpretation, to
see whether the alternative interpretation has a sufficient degree of clarity to be a
fair reading of the words used and to perform the defining function of these words in
the Acts. In the 1975 Act, the relevant words "woman employed by him" only
appear in section 6(2) of the Act. Section 6(1) does not use such words since it deals
with those seeking employment; it uses the words "in relation to employment by
him". In subsection (2) where the words are used, no problem need arise under
paragraph (a) since the wording of that paragraph read as a whole clearly refers to
things happening during the currency of the woman's employment by the
discriminator; paragraph (a) is self limiting and therefore does not raise the question
presently under consideration nor does it need a restricted meaning to be given to
the introductory phrase. It is in paragraph (b) that the question manifests itself.
Paragraph (b) includes two elements: first, "by dismissing her"; secondly, by
"subjecting her to any other detriment". The first should be read as referring to the
whole of the process of dismissal. So, if the internal procedures of the employer or
the legitimate expectations of the employee (or indeed the avoidance of an "unfair"
dismissal) include a review of the dismissal decision, whether by appeal or
otherwise, paragraph (b) should be read as including that review within its scope and
any discrimination on grounds of the sex of the employee will be contrary to the
law. (I have used the word "employee" in this sentence deliberately to demonstrate
that it is a perfectly natural use of language to refer to the woman in this situation in
that way.) Thus the content of the first part of paragraph (b) suffices to guide the
giving of a non-legalistic meaning to the earlier phrase "employed by him". In my
judgment a similar approach should be adopted in relation to the second part of
paragraph (b)--"or subjecting her to any other detriment", a phrase which can
include the denial of a benefit and ties in with the phrase "treats her less favourably"
in section 1.
    139 The words "subjecting her to any other detriment" are general and undefined
but it can be seen that the problem of construction is to decide what breadth they
should be given and whether, on the facts of any given case, the facts fall within
them. Guidance upon the scope can again be derived from the content of the
provision. What are the detriments which an employer may subject an employee to
which can fairly be referred to as "any other detriment" in the context of this
subsection? The answer must lie in a test of proximity. Does the conduct
complained about have a sufficiently close connection with her employment? Is it
sufficiently similar to the other conduct mentioned in the subsection? Any criterion
of proximity has as its antithesis the concept of remoteness. Remoteness can have,
as an element, remoteness in time. The further removed the conduct is in time from
the employment, the greater the likelihood that the conduct is too remote and that
the employment has become merely a matter of history. This is not a resurrection of
the Adekeye test; it involves no cut-off point but is simply a recognition that, as time
passes, it may become more difficult to show that the conduct complained of had a
sufficient connection with the employment and a sufficient similarity with the other
conduct falling within subsection (2). Thus it is relevant to ask whether the conduct
complained of, if committed whilst she had still been currently employed by the
person complained about, would have come within section 6(2)(a); but she will also
have to show that other former employees would, in the same circumstances, not
have been subjected to the detriment-- would have enjoyed the benefit denied to her.
    140 I appreciate that such an approach will ultimately lead to fact specific
decisions in a number of cases but that is what is involved in the rejection of an
arbitrary time--based criterion. It should not lead to any additional uncertainty for
employers since the construction which I prefer is based upon a factual connection
with the employment which it should be easier for the lay employer to understand
and apply than an essentially legal criterion depending upon identifying the moment
when "dismissal" was complete. The nub is that the introductory words "a woman
employed by him" are to be read with the rest of subsection (2) and relate to a
substantive and proximate connection between the conduct complained of and her
employment by the alleged discriminator.
    141 In assessing whether the requisite connection exists, a starting point is to ask
whether the same conduct during the currency of the employment would be
unlawful. Likewise it is relevant whether or not a legitimate expectation of the
benefit, or the contractual right to it, has continued and whether other former
employees do in the same circumstances enjoy the benefit or suffer the detriment.
For example, if other employees are permitted to continue to enjoy the use of the
employer's social club after they have retired, but the complainant is not, that will
come within the expression "any other detriment" and, if she has been discriminated
against on grounds of her sex, she will be entitled to complain.
    142 More difficult is the giving of references since it may refer to many different
situations--the refusal of any reference at all, the giving of a limited reference, the
giving of an unfavourable reference--and to many different complaints--breach of
contract, breach of a legitimate expectation, breach of a duty of care, defamation,
discrimination. Also the complainant may well be able to argue that, if the same
reference had been refused or given during the currency of her employment, she
would have been discriminated against but it of course does not necessarily follow
that later conduct would also amount to discrimination. Something more has to be
alleged and proved, that she had at the least a legitimate expectation of being given a
reference at a later stage and in her then circumstances and that other ex-employees
would in the same circumstances have been given one. Likewise, if one has been
given but she is complaining about what it does or does not say, she must allege and
prove that others in the like circumstances would have received a favourable one. In
Spring v Guardian Assurance plc [1994] ICR 596, your Lordships' House
considered the extent and content of the obligation to give a reference. Lord Woolf
referred, at p 647, to the fact that the position might not be the same once the
employee had left his employment and there had been a lapse of time. Discussing
the contractual term which might be implied he used the phrase "during the
continuance of the engagement or within a reasonable time thereafter": p 647E. The
obligation will not necessarily be open-ended and the later it is asked for the less
detail and information it may contain. It must be an obligation which the employer
recognises in respect of other ex-employees in the like circumstances, otherwise the
complainant cannot say she has been subjected to a detriment or denied a benefit. If
the conduct is to be the subject of a complaint under one or other of the anti-
discrimination Acts, it must come within and satisfy the criteria of the relevant Act.
This illustrates the link in practice between the questions of "less favourable
treatment", denying a "benefit" and subjecting to a "detriment". I will have to revert
to the question of references when I come to deal with the appeals in the cases
which arose under the 1995 Act.
    143 What I have said in the preceding paragraphs also reflects the view of the
European Court of Justice in Coote v Granada Hospitality Ltd (Case C-185/97)
[1999] ICR 100. The employee's complaint was that she had been discriminated
against on the grounds of her sex in that after leaving her employment she had
applied to her former employer for a reference and had been refused one. The
background to the dispute was that she had earlier, whilst still actually employed by
him, complained about other conduct of her employer and her discrimination claim
on that occasion had been settled. The case therefore had a victimisation element.
The industrial tribunal had rejected her (second) claim under the 1975 Act on the
ground that at the time she was refused a reference she was no longer employed by
him. However, since her case was also covered by the Equal Treatment Directive
76/207, the appeal tribunal sought an opinion from the European Court of Justice
whether that decision was consistent with the Directive's requirement that member
states provide effective remedies.
    144 The Advocate General emphatically rejected the Adekeye criterion, at p
105, paras 14-16:
        "It would be totally unjustifiable for the application of the prohibition of
    discrimination on the grounds of sex to a decision on the provision or refusal of
    references to depend on the moment when that decision was taken ...
        "15. The court has, moreover, always held with regard to equal pay that the
    prohibition of discrimination by an employer between employees on grounds of
    sex does not cease to have effect on termination of the contract of employment
    ...
        "16. I therefore consider that an employer may not discriminate on grounds
    of sex when providing an employee with references, whatever the moment--
    whether during or after the period of the employment relationship--at which the
    decision is taken in that regard or at which those references are requested."
    145 The European Court of Justice, after noting the element of victimisation,
summarised its ruling upon the question referred, at p 113, para 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 ..."
It would be possible to read this judgment as limiting the ruling to cases of
victimisation but in my view that would not do justice to the reasoning which is
more comprehensive. Nor would it pay adequate regard to the clear views expressed
by the Advocate General.
    146 On the return of the case to the Employment Appeal Tribunal [1999] ICR
942, the appeal tribunal recognised that the main issue which they had to consider
was "whether it is possible to construe the 1975 Act so as to enable a complainant to
make a victimisation complaint in relation to events that occurred after the
employment relationship had terminated". The judgment of appeal tribunal, given by
Morison J, carefully reviewed the reasoning of the Court of Appeal in Adekeye
[1997] ICR 110 and concluded that it could no longer be followed. Victimisation
cases may be a fortiori but within the scheme of these Acts all cases have to pass
through the gateway of one of the "fields" of application and therefore it is still, in
an "employment field" case, necessary to consider the "employed by" question. I
consider that Morison J was right and that Adekeye is no longer good law.

Victimisation

    147 What I have said in the preceding paragraphs is also largely dispositive of
the treatment of victimisation cases. Victimisation is in principle a free-standing
unlawful wrong. It is ancillary to the main provisions of the relevant Act. It is not
dependant upon the primary criterion of discrimination--sex, race, disability. The
criteria are different. For example, to use the wording of section 4 of the 1975 Act,
the victimisation arises from the complainant having made a sex discrimination
complaint against the discriminator or any other person or having assisted another to
do so or having given evidence in support of that other. The section has even been
amended to bring in other Acts and extends to suspected conduct of the victim either
past or future. These criteria go far beyond anything specific to any employment
relationship between the victim and the alleged discriminator and are in themselves
gender (or race or disability) neutral. There is a saving in each of the Acts to exclude
"victims" who have made false allegations or acted in bad faith.
    148 However it is still necessary for the person making a victimisation complain
to show that the discriminator has treated the person victimised "less favourably
than in those circumstances he treats or would treat other persons". This brings one
back to the "field" provisions and, in the 1975 Act, to section 6(2). The less
favourable treatment has to come within one part or another of section 6 and, if it is
upon section 6(2) that the complainant relies, the complainant must show the
requisite connection between the less favourable treatment complained of and her
employment, whether it be prospective, future, current or past, by the alleged
discriminator. Again the decision of the European Court of Justice is compelling.
The Acts must be construed so as not to amount to the denial of a remedy for
victimisation and, in particular, not so as to apply an arbitrary temporal test. Once it
can be shown that it is a detriment--a disadvantage--to which the employer does not
subject others and it can fairly, in the context of section 6(2), be termed any other
detriment, the victimised complainant will have proved what is required in this
respect. It is certainly not disproved by the mere fact that the complainant is no
longer employed by the discriminator.
    149 Victimisation is an a fortiori case which shows that the application of the
Adekeye approach is unacceptable. But essentially the same construction of the
provisions defining the "employment field" is to be adopted in victimisation cases
and in ordinary discrimination cases. The case must still come substantively within
the provisions defining the "field".

The jurisdiction question
    150 In any "employment field" case there is potentially a jurisdiction question
for the employment tribunal. Section 63(1) of the 1975 Act (as amended) provides:
        "A complaint by any person ('the complainant') that another person ('the
    respondent')--
             (a) has committed an act of discrimination against the complainant which
        is unlawful by virtue of Part II ... may be presented to an employment
        tribunal."
There are provisions to the like effect in section 54(1) of the 1976 Act and section
8(1) of the 1995 Act. The tribunals are bodies with limited jurisdiction. Section 2 of
the Employment Tribunals Act 1996 empowers them to exercise the jurisdiction
given to them by, inter alia, these Acts. It follows that if the complaint does not fall
within the "employment field" as defined in the relevant Act, the employment
tribunal does not have jurisdiction to entertain the complaint and must decline to do
so, as did the tribunal in Adekeye.
    151 To categorise any question as going to jurisdiction raises procedural
problems for the tribunal. At what stage of the proceedings should the tribunal
decide the question? Does the actual question go to jurisdiction? Under Adekeye
this did not raise any real difficulty for the tribunal. The complainant had to say
when the act complained of had occurred. The time based criteria (the time bar and
the date of dismissal) could then be mechanically applied. But if, as is my opinion, a
substantive criterion has to be applied, more may need to be known and some
investigation may have to take place. There seems to be no escape from the
conclusion that the whole of the "employment field" provision (in the 1975 Act,
section 6) is relevant to jurisdiction. The complainant must prove--satisfy the
tribunal--that his or her complaint comes within the relevant section. If the
complainant fails to do so, then the claim must fail both substantively and as a
matter of jurisdiction. This would then preclude any consideration whether or not
there was any discrimination contrary to the primary provisions of the relevant Act
or any victimisation.
    152 But this tidy dichotomy will rarely exist in practice. The question whether
the complainant was subjected to some "other detriment" overlaps with (but is not
the same as) the question whether the complainant was treated "less favourably".
The tribunal will often find itself in practice in the same position when deciding an
issue concerning less favourable treatment as it now does when it has to decide a
dispute which turns upon the provisions which define the "employment field" and
will find it advantageous to make use of the same procedures to simplify hearings
and separate off those claims which can have no proper basis and those allegations
which appear to have no substance in fact. As the cases demonstrate, the tribunal is
competent to decide whether it has jurisdiction and any such decision can be the
subject of an appeal to the Employment Appeal Tribunal.

The individual cases

    153 In all the cases under appeal the courts below had treated themselves as
bound by Adekeye. They accordingly decided them against the present applicants on
jurisdictional grounds (and/or time bar) without considering or investigating the
merits of the applicants' claims. I have given my opinion that Adekeye is not good
law; it follows that all the appeals should be allowed and remitted for further hearing
unless there is some other factor which justifies not taking that course.
Rhys-Harper

    154 The whole of her complaint involved allegations of less favourable
treatment which fell within the ambit of the "employment field" as being either part
of the dismissal process itself or part of the internal review of her dismissal. Her
primary problem was that she had not made any claim in the employment tribunal
until 18 February 1999. The cut-off date for her was therefore 19 November 1998.
She had been dismissed at a disciplinary hearing held on 10 October. She had
exercised her right of internal appeal and the hearing was on 9 November.
Originally her complaints were confined solely to her being dismissed on the ground
of what had occurred on 6 October (the date of the incident involving guests at the
swimming pool for which she was being disciplined). However when giving
evidence at the hearing of her internal appeal, which was conducted by the
respondents' general manager, Mr Adamson, she stated that she been subjected to
sexual harassment at an earlier stage of her employment and referred also to other
earlier acts of sexual discrimination at earlier dates which she had not complained
about at the time. Mr Adamson asked her to give him a written statement concerning
the earlier incidents so that he could investigate them himself. (The written
statement has not been put in evidence in the present proceedings.) She later told the
employment tribunal that "it was investigated badly".
    155 On 30 November 1998 Mr Adamson sent Ms Rhys-Harper two separate
letters. One, headed "Re Appeal Hearing" consisted of one sentence: "Following
your appeal against your dismissal, having investigated the events the company has
found there was sufficient grounds to dismiss and therefore the decision stands."
The other was headed "Re Allegation of sexual harassment against Ken Osborn". In
it Mr Adamson referred to the allegation of sexual harassment she had made against
Mr Osborn, informed her that a full and thorough investigation had been made into
the alleged incident (which she had said had occurred at an earlier date when she
had gone into the men's showers and no one else had been present), that staff had
been interviewed, including Mr Osborn, that it was confirmed that she had reported
the incident but had asked for the information to remain private, that other staff had
been unable to substantiate or witness the alleged harassment and that accordingly
the company had concluded that there was "insufficient evidence to establish a case
against Mr Osborn". He ended his letter by stressing that the company did not
condone harassment or victimisation and any member of staff found guilty of any
form of harassment would be dealt with in accordance with company policy and
disciplinary procedures, adding that if additional evidence should become available
a further investigation would be held.
    156 In her application to the employment tribunal, she confined her complaint to
sexual harassment and (it seems) constructive dismissal. Her particulars of her
complaint only referred to alleged incidents of sexual harassment and bullying
occurring over a period January 1998 to October 1998 and to the incident which
occurred on 6 October 1998 and had led to her dismissal. She alleged that the
investigation of the 6 October incident and her complaints about Mr Osborn had not
been investigated properly by the company prior to dismissing her. The employment
tribunal considered that time could be treated as running from 30 November 1998
and that her claims were accordingly in time. Before the tribunal she had appeared
in person and the company had been unrepresented and had merely made a short
written submission.
     157 Before the Employment Appeal Tribunal both sides were represented, the
company by an employee and Ms Rhys-Harper by counsel. Her counsel put her case
solely on the basis of sexual discrimination submitting that "the act complained of"
was "the act of failure to investigate properly and dismissing her complaint" (sic).
But it was not part of her case that she had asked Mr Adamson for an investigation,
nor has she alleged that in that investigation she was treated unfavourably on the
grounds of her sex. The appeal tribunal was nevertheless prepared to treat this
complaint as referring to a continuing breach still existing on 30 November 1998 but
it rejected the claim on the basis of Adekeye. If the appeal tribunal was not correct
in its conclusion about the time bar point, the claim would have failed anyway; the
Adekeye point would be academic.
     158 Your Lordships consider that the case should be remitted to enable the
further consideration of her claim unfettered by the decision in Adekeye. For
myself, I have considerable doubts whether this is an appropriate order to make.
There seems to have been a mistaken assumption that under the 1975 Act there was
an entitlement to make a free-standing complaint of sexual harassment and to
overlook the necessity for establishing a breach within the criteria stated in section
1(1)(a) of the Act and satisfying the substantive requirements of section 6(2)(b)
which I have endeavoured to explain. The fact that Adekeye was wrong does not
mean that section 6(2) is not still relevant to the admissibility of the claim now being
put forward. Nor does it mean that the three-month time limit can be forgotten about
or that it is unnecessary to do justice as between both parties and to consider
whether she had ever made the complaint now relied on prior to its being introduced
during the hearing. Since the decision of the House is that the case should be
remitted, I trust to a freshly constituted tribunal which will reconsider the whole
matter, I will say no more about these points as they will now have to be the subject
of a decision of an employment tribunal. If her present complaint was time-barred at
the time she first made it, it remains time-barred now.

D'Souza

    159 This case too has complexities. In 1992, the applicant had made claims of
unfair dismissal, race discrimination and victimisation which were upheld by the
employment tribunal which ordered that he be reinstated. In March the following
year the borough informed him that he would not be reinstated. On 1 July 1995, the
applicant made a complaint of further discrimination and victimisation in respect of
the failure of the borough to reinstate him. On 10 July 1995, the tribunal found that
it had not been reasonably practical to reinstate him and made an appropriate award
of compensation taking into account the failure to reinstate him. The tribunal
communicated its decisions to the parties on 10 and 14 August. Meanwhile, on 31
July, the applicant had lodged a further application to the tribunal effectively
duplicating that of 1 July alleging that the refusal to reinstate was race
discrimination and victimisation. It was this application which came before the
tribunal on 23 February 1996 and was dismissed on the basis of Adekeye.
    160 The problem for the applicant is that his essential complaint remains that he
was not reinstated. It is this act which he alleges amounted to discrimination and
victimisation. But he has already, pursuant to the earlier decision of the employment
tribunal, been compensated by the borough for the failure to reinstate and there is
nothing further which can form the basis of a claim for compensation. I therefore
agree with your Lordships that the appeal in this case ought to be dismissed.
The 1995 Act cases

    161 These four cases also raise some problems. Two of them are concerned with
the content of references: Kirker and Angel. A third, Bond, concerns an answer
given to a mortgage insurance company. The fourth, Jones, is different and relates to
the refusal to return property. They all lie close to the limits of what comes within
the boundaries of the "employment field". Three of them raise arguable cases of
victimisation--Kirker, Jones and Angel--and are thus capable of satisfying the
discrimination requirement but still need to satisfy the "employment field"
requirement.
    162 Jones is perhaps the simplest case. Mr Jones complains of the refusal to
allow him to have back business cards, his personal property, which were left behind
at his workplace when he was dismissed. The connection with his employment is
clear and not affected by the delay which occurred. I would therefore allow the
appeal and order a remission.
    163 Kirker and Angel are, as I have said reference cases but of a particular kind.
They relate to delayed applications for references which were not responded to as
favourably as the applicant would have wished. Mr Kirker complains that his
employers declined to answer the question whether they would have re-employed
him. The person answering a reference is under a duty to the person making the
inquiry to give an honest and truthful answer. If the truth is that the referee would
not have re-employed the relevant person, the referee must say so even though it
may be fatal to that person's job application to the person making the inquiry. The
same considerations apply to the complaint of Mrs Angel. If the case of either of
them is that the former employer should have given a reference which it did not
believe to be factually correct and accurate, the complainant will have to be
prepared to allege and prove that the former employer would have given other ex-
employees references which it knew were inaccurate or incorrect. This is a difficult
case for any complainant to make credibly and, if they cannot, they have no credible
case that they have been treated less favourably. Since the answers to this question
depends upon facts not in your Lordships' possession on the hearing of these appeals
I would therefore allow the appeals and order remission as in the case of Rhys-
Harper.
    164 Finally in the case of Mrs Bond. Her case has a longer history behind it. Her
complaints centre on two points. One is that Hackney Citizens Advice Bureau
declined to supply her with references in accordance with a draft which she herself
had prepared. The other is that they declined to state to her mortgage insurance
company that she had been made compulsorily redundant. It was the bureau's
understanding that she had agreed to voluntary redundancy. Following the same
logic, I would allow her appeal and order a remission so that the whole matter can
be considered afresh.

Conclusions

    165 For these reasons, which substantially accord with those of my noble and
learned friend Lord Nicholls, I would allow the appeals in all the cases except
D'Souza and make orders accordingly for remission to an employment tribunal. I
would dismiss the appeal in D'Souza.
LORD SCOTT OF FOSCOTE

    166 My Lords, each of these appeals raises the important question of principle
whether discriminatory acts (or omissions) detrimental to an ex-employee but
carried out by an ex-employer after the employment has come to an end can give
rise to liability under the anti-discrimination legislation at present in force. Although
the point of principle arises in each of the appeals, and needs to be considered as a
point of principle, the point requires a context for its implications to be fully
comprehended. The facts of each appeal have been fully set out in the opinions of
my noble and learned friends, Lord Nicholls of Birkenhead and Lord Hope of
Craighead. I gratefully adopt their exposition and can confine myself to referring to
the essential skeletal details of the respective cases.

Rhys-Harper v Relaxion Group plc

    167 The applicant's complaint to the employment tribunal began its life as one of
sexual harassment and constructive dismissal. She had been accused of misconduct.
A disciplinary hearing to inquire into the incident in question was conducted by a
Mr Osborn. His decision was that she was to be dismissed and she was given one
week's notice, expiring on 22 October 1998. The decision was formally
communicated to her by letter of 15 October 1998. Under Relaxion's internal
disciplinary procedures she had the right to appeal against the dismissal decision.
She decided to exercise this right and appealed. Her appeal was heard by Mr
Adamson, Relaxion's general manager. In the course of the appeal hearing, on 9
November 1998, the applicant complained that prior to the events that were the
occasion of her dismissal she had been the victim of sexual harassment by Mr
Osborn. It is, in my opinion, a fair inference that her complaint about sexual
harassment by Mr Osborn was not a free-standing complaint separate from her
appeal against dismissal but was put forward as a reason for impugning Mr Osborn's
dismissal decision.
    168 On 30 November 1998 the applicant received two letters from Mr Adamson.
One letter told her that her appeal against dismissal had failed. The other letter told
her that her sexual harassment complaint against Mr Osborn had been the object of a
"full and thorough investigation" and that there was "insufficient evidence to
establish a case against Mr Osborn".
    169 It is of relevance that the latter letter said that "members of staff did confirm
that you had reported an incident to them and that you had requested that the
information remain private". This comment is consistent with the applicant's
evidence to the employment tribunal that she had not previously to 9 November
1998 made any formal complaint about the sexual harassment (see the note of
evidence made by the chairman of the tribunal).
    170 The applicant's application to the employment tribunal was made on 18
February 1999. She complained of sexual harassment and unfair dismissal. A
preliminary point was taken. The point was whether the application had been made
within the prescribed three months. At a preliminary hearing to deal with the point
the tribunal concluded (by a majority) that the applicant's employment had
continued until 30 November 1998 and that, accordingly, her application was in
time. In the course of their extended reasons the tribunal described the applicant's
complaint as being "for a series of incidents of sex discrimination which lasted until
early October 1998" but took the view that Mr Adamson's 30 November 1998
decision "could be in itself a continuing discrimination against her" (paragraph 8).
     171 Relaxion's appeal to the Employment Appeal Tribunal succeeded: [2000]
IRLR 810. The appeal tribunal held, correctly as is now agreed, that the applicant's
employment had terminated on 22 October 1998 when the one week's notice had
expired. That being so, her application to the employment tribunal, in so far as it
related to unfair dismissal or to sexual harassment preceding her dismissal, was out
of time. If her sexual discrimination claim was to be viable then, unless she were
given an extension of time, she would need to rely on an act of discrimination
occurring after 19 November 1998, i e after the termination of her employment on
22 October 1998.
     172 Accordingly, both in the appeal tribunal and in the Court of Appeal [2001]
ICR 1176 the applicant's claim was presented as including a complaint about an act
of discrimination consisting of failure by Mr Adamson to investigate properly her
complaint of sexual harassment. The appeal tribunal posed the question whether she
had "a free-standing claim ... in relation to matters after 19 November 1998 even
though she had ceased to be an employee" (paragraph 4). In the Court of Appeal Pill
LJ, at p 1178, para 2, described her complaint as a "complaint about sexual
harassment"--which is what it had originally been--but Buxton LJ, at p 1188, para
39, described it as "solely a failure ... properly to investigate her complaint"--which
is what it had had to become.
     173 The appeal tribunal held that, since the alleged discriminatory conduct had
taken place after the applicant's employment had come to an end, her complaint
could not be brought within the 1975 Act. Her appeal on this point was dismissed by
the Court of Appeal. The point is now before your Lordships.
     174 In summary, the alleged discriminatory conduct was committed by
Relaxion, through Mr Adamson, after the applicant's employment had come to an
end. The conduct in question was Mr Adamson's alleged failure to deal properly
with the sexual harassment complaint made to him as part of the applicant's case that
her dismissal by Mr Osborn ought not to be allowed to stand. In failing to deal
properly with the complaint Mr Adamson, it is said, discriminated against her.

D'Souza v Lambeth London Borough Council

    175 In this case the alleged discrimination consisted of the council's failure to
reinstate the applicant in the job from which he had been dismissed. He was
dismissed in January 1990. Following his dismissal he made an application to the
employment tribunal complaining of unfair dismissal, race discrimination and
victimisation. His application was successful on all three grounds and on 16
November 1992 the tribunal made an order that the council reinstate him by 16
January 1993. The council did not reinstate him. In July 1995 the applicant instituted
a fresh application against the council complaining of racial discrimination and
victimisation in respect of the council's failure to reinstate him. The council
contended that the post the applicant had previously occupied no longer existed and
that it was not practicable for them to reinstate him. The tribunal accepted these
contentions and, by a decision of 18 October 1995, made an award of compensation
in the applicant's favour in respect of his original complaint of unfair dismissal,
having regard to the fact that he had not been reinstated. In effect this decision
replaced the original order for reinstatement with an award of compensation.
    176 On 14 March 1996 the tribunal held it had no jurisdiction under the 1976
Act to hear the applicant's complaint of race discrimination in respect of the
council's refusal to reinstate him because the discriminatory conduct in question
took place at a time when the applicant was no longer an employee of the council.
The appeal tribunal and the Court of Appeal agreed. The point is now before your
Lordships.
    177 In the D'Souza case the important context in which the point arises is not
simply that the discriminatory conduct complained of was post-employment but is
also that the complaint relates to the statutory remedies for unlawful discrimination.
It was the Employment Protection (Consolidation) Act 1978, now replaced by the
Employment Rights Act 1996, that provided reinstatement as a possible remedy (see
section 113 of the 1996 Act); it was the same Act that enabled the employer to seek
a determination that reinstatement was not reasonably practicable (see section
116(5) and (6) and section 117(7) of the 1996 Act); it was the same Act which
enabled an award of compensation to be made if an order for reinstatement was not
complied with (see section 117(1) and (2) of the 1996 Act).

The disability discrimination appeals

    178 There are four cases, in each of which the applicant suffers from a disability
and alleges that he has suffered discrimination from an ex-employer on account of
the disability. In each, a claim was made under the Disability Discrimination Act
1995. Kirker v British Sugar plc concerns references. The applicant was dismissed
by British Sugar in March 1997 and successfully claimed that his dismissal involved
discrimination on account of his disability. In August 1999 he applied for a position
with another company and named British Sugar as a previous employer who could
give a reference about him. British Sugar were asked by the prospective employer
*921 to supply the reference. They say they did so, but that is in dispute. The
applicant's job application failed and he commenced proceedings both against the
prospective employer and against British Sugar. The claim against British Sugar
alleges discrimination and victimisation in failing to supply the reference. The
question arises whether, even if the applicant's claim is factually correct, the
discrimination is covered by the 1995 Act. He was an ex-employee seeking a
reference from an ex-employer.
    179 In Jones v 3M Healthcare Ltd the applicant was dismissed and brought
unfair dismissal and disability discrimination proceedings against his ex-employers.
The proceedings were unsuccessful. The applicant then asked his ex-employers to
return to him some business cards which he had left in his erstwhile office and, on
their failure to do so, successfully sued in the county court for the return of the
cards. He then commenced proceedings under the 1995 Act alleging that his ex-
employers' failure to return his cards was because he had instituted the
discrimination proceedings and was accordingly victimisation. But at the time of the
allegedly victimising conduct, the applicant was no longer an employee. Is the
discrimination covered by the 1995 Act?
    180 Angel v New Possibilities NHS Trust is another reference case. The
applicant was dismissed from her employment with the trust in July 1998. She
claimed that she had been dismissed on account of her disability. Her claim was
successful. She sought new employment. The trust provided a reference about her to
the proposed new employers. But she was not offered the job. She then claimed that
the trust had victimised her by giving an adverse reference about her.
    181 Finally, there is Bond v Hackney Citizens Advice Bureau. The applicant had
been employed by the bureau but in October 1999 had been made redundant. In
November 1999 she made an application to an employment tribunal alleging that
she had been discriminated against by the bureau on account of her disability. And
in June 2000 she made a further application alleging that the bureau had victimised
her by declining to give a reference about her and also by the manner in which they
had responded to inquiries made about her in connection with her mortgage
repayments. The conduct complained of took place after her employment by the
bureau had come to an end.
    182 In each of these appeals the employment tribunal took the view that the
complaints were not covered by the 1995 Act for the reason that the discriminatory
conduct complained of had taken place after the employment had come to an end.
The Employment Appeal Tribunal and the Court of Appeal agreed. The point is now
before your Lordships.

The scope of the anti-discrimination legislation

    183 It is clear that each of the anti-discrimination statutes, that is to say, the Sex
Discrimination Act 1975, the Race Relations Act 1976 and the Disability
Discrimination Act 1995, covers discrimination against applicants for jobs and
discrimination against current employees. The issue is whether or to what extent the
Acts cover discrimination against ex-employees. There are three particular types of
case in which alleged discrimination against ex-employees has led to litigation and
to consideration being given to the issue by the courts. They are, first, cases in
which the alleged discrimination has taken place in the course of domestic appeal
procedures; second, cases in which an ex-employee has sought a reference from his
or her ex-employer; and, third, cases in which some benefit has been extended by
the ex-employer to some but not all ex-employees. There may, of course, be cases
which do not fall into any of these categories. Jones v 3M Healthcare Ltd and the
ex-employer's retention of the business cards is one such case.
    184 The issue is essentially one of statutory construction. The language used in
each of the three Acts suggests, if read literally, that ex-employees are not protected.
The 1975 Act refers to "a woman employed by" the discriminator (section 6(2)). The
1976 Act refers to "a person employed by" the discriminator (section 4(2)). The
1995 Act refers to "a disabled person whom [the discriminator] employs ..." (section
4(2)). This language is indicative of a present relationship rather than a past one. My
noble and learned friend Lord Hope of Craighead has, in paragraphs 97 to 101 of his
opinion, referred to a number of textual provisions in the 1975 and 1976 Acts that
reinforce the indication of a present relationship. And, as he points out (paragraphs
102 and 103), the indication of a present relationship is further reinforced by the
language used in the 1995 Act.
    185 The conclusion that ex-employees are not protected under these three Acts
is consistent with domestic authority. In Nagarajan v Agnew [1985] ICR 520 Knox J
held that there had to be a "subsisting employment relationship" for a claim under
section 4(2) of the 1976 Act. The Court of Appeal in Post Office v Adekeye [1997]
ICR 110 came to the same conclusion on the point. Peter Gibson LJ said, at p 118B:
"giving the words 'in the case of a person employed by him' their ordinary and
natural meaning in their context, those words mean, and can only mean, 'in the case
of a person who is employed by him'."
    186 This conclusion has not, however, met with uniform satisfaction. In
Adekeye itself Peter Gibson and Pill LJJ said that it was unsatisfactory that the 1976
Act did not give a remedy for discrimination in the handling of an appeal against
dismissal by an ex-employee. Morison J in the Employment Appeal Tribunal has
twice expressed dissatisfaction with Adekye (see Cooke v Granada Hospitality Ltd
(No 2) [1999] ICR 942, 949-950 and D'Souza v Lambeth London Borough Council
(unreported) 27 June 2000).
    187 It has been urged upon your Lordships to adopt a purposive approach to
construction of the relevant language in the three Acts. It must surely, it is said, have
been the intention of the legislature to protect an ex-employee from discrimination,
and a fortiori from victimisation for having previously complained of
discrimination, where the discriminatory acts complained of consist of the unfair
handling of appeals against dismissal. In these cases the applicant will, if the appeal
succeeds, be reinstated as an employee as though he or she had never been
dismissed. How can Parliament have intended that an employer, in reaching a
decision as to whether an employee's dismissal should stand or should be set aside,
should be free from the restraints on discrimination imposed by the Acts? It seems
to me that once the question is asked there can be only one answer. Of course
Parliament must have intended the Acts to apply to such cases.
    188 On the other hand, where references are concerned the answer to whether
Parliament must have intended the Acts to apply seems to me by no means clear. A
request for a reference is, in part, a request for an opinion about the individual in
question and, in part, a request for a statement of known events concerning that
individual. An employer has no general contractual obligation to give a reference
about an employee or an ex-employee but, as Lord Slynn of Hadley said in Spring v
Guardian Assurance plc [1994] ICR 596, 628 E: "in many cases an employee will
stand no chance of getting another job, let alone a better job, unless he is given a
reference. There is at least a moral obligation on the employer to give it." Lord
Woolf went further and expressed the view, at p 647, that in respect of some types
of employment:
        "it is necessary to imply a term into the contract that the employer would,
    during the continuance of the engagement or within a reasonable time thereafter,
    provide a reference at the request of a prospective employer which was based on
    facts revealed after making ... reasonably careful inquiries ..."
And Lord Goff of Chieveley commented, at p 613B-C: "The provision of ...
references is a service regularly provided by employers to their employees; indeed,
references are part of the currency of the modern employment market."
    189 Their Lordships held in Spring v Guardian Assurance plc that an employer,
or ex-employer, would owe a duty not only to the prospective new employer but
also to the subject of the reference to take reasonable care that the reference was fair
and accurate.
    190 Whether or not there is an implied contractual obligation on an employer, or
ex-employer, to give a reference, as there may be in some cases, most employers
would, I am sure, usually give a reference if asked to do so. But some might be
reluctant to do so, particularly if a long period had elapsed since the object of the
reference had been an employee. If the anti-discrimination Acts are held to extend
generally to ex-employees as well as current employees, any refusal or failure to
supply a reference when asked to do so, no matter what period of years might have
elapsed, might attract a discrimination complaint.
     191 Employers would be in a particularly vulnerable position where the
possibility of a victimisation complaint was present. Suppose an employee has made
one, or more than one, unsuccessful discrimination complaint during the currency of
his employment with a particular employer. He then leaves his employment and
later asks for a reference in connection with an application for a job with some other
employer. Must the first employer inform the prospective employer of the history of
discrimination complaints made by the ex-employee? If the first employer refrains
from doing so, will he be in breach of his duty to the prospective employer? If he
does inform the prospective employer of the fact that the discrimination complaints
were made and of their outcome, would that be victimisation? Perhaps not, but to
include in the reference the details of the unsuccessful discrimination complaints
would surely be damaging to the ex-employee's job prospects. Could it not be
represented as constituting less favourable treatment than would have been accorded
to an ex-employee who had not made such complaints? Similar problems might, of
course, arise in relation to requests for references made by current employees.
     192 The problems about references are demonstrated by some of the disability
discrimination cases now before the House. In Kirker complaint is made of a failure
by British Sugar to provide a reference. Was British Sugar under an obligation to
provide a reference? Presumably not. It may be that a reference was in fact
provided. But the applicant did not succeed in getting the job applied for. Was that
because the reference was unfavourable? If it was unfavourable was that because the
applicant had successfully claimed to have been dismissed on account of his
disability?
     193 Angel v New Possibilities NHS Trust raises similar questions. Victimisation
by the supply of an unfavourable reference is the kernel of the complaint. And in
Bond v Hackney Citizens Advice Bureau, too, victimisation by an ex-employer in
failing to supply a reference is the kernel of the complaint.
     194 It is one thing to allow the Acts to apply to references requested about
current employees during the currency of the employment. It is quite another thing
to allow them to apply without limit of time to all ex-employees. It is clear enough
that Parliament did not have these problems in mind. Otherwise some provision
would surely have been included in the Acts clarifying the position. But that is not
by itself a reason why the Acts, if their language allows it, should not be applied to
these cases. The literal language of a statute ought not, however, to be extended so
as to cover matters that Parliament did not have in mind unless it is clear from the
statute properly construed that Parliament would have intended the extension.
     195 The same problems are associated with post-employment benefits. If ex-
employees are led to expect post-employment benefits, such as membership of
sports clubs, concessionary travel benefits or the like, it is easy to conclude that,
even if their expectation is not strictly contractual, their deprivation of these benefits
in circumstances involving discrimination on sex, race or disability grounds should
be covered by the relevant Act. If, however, no such expectation has been
engendered and an employer decides to offer some extra-contractual benefit to
employees and to extend the benefit to some but not all ex-employees, can the
excluded ex-employees make a discrimination complaint? A person can decide on
which strangers he will bestow his generosity and from whom he will withhold it.
Can he not exercise the same freedom to discriminate in relation to those who were
in the past his employees but have become strangers? Why should the anti-
discrimination Acts apply? The answer to these questions is not, in my opinion,
apparent from the Acts themselves.
    196 So how is the line to be drawn. How is the principle to be formulated that
would enable ex-employers and ex-employees to judge whether the imposition of a
particular detriment, alleged to be discriminatory, was or was not covered by the
Act? One answer would be to construe the Acts simply as covering all ex-
employees. The participle "employed" in the 1975 and 1976 Acts would be read as
meaning "has been or is employed", and the word "employs" in the 1995 Act would
be read as meaning "employs or has employed". An alternative answer would be to
confine the relevant words to their strict literal meaning and exclude ex-employees
from protection under the Acts in all circumstances. My Lords, I would, for my part,
reject both these extremes. I would reject the first because it requires a purposive
construction that can only be justified by attributing to Parliament an evident
intention that, to my mind, is not in the least evident. I would reject the second
because it introduces an arbitrary rigidity into the implementation of the Act that is
unrealistic and cannot have been intended.
    197 In my opinion, the answer to the conundrum can be found by concentrating
on the relationship between the employer and employee that is brought into
existence when the latter enters the service of the former. The relationship is, of
course, based on contract, express or implied, but does not necessarily come to an
end, ipso facto, when the employment comes to an end. The internal appeal
procedures that most employers, and all good ones, institute are a good example.
Employees are entitled to avail themselves of these procedures. An employee who is
dismissed and challenges the dismissal does not because he has been dismissed lose
his right to appeal. The relationship between employer and employee, or ex-
employee as he may by reason of his dismissal have become, is still in existence.
The employee's, or ex-employee's entitlement is not simply an entitlement to lodge
an appeal. He or she is entitled also to a fair hearing that is not tainted by
discrimination. An obligation to provide such a hearing lies on the employer, or ex-
employer. The relationship that is brought into existence when an employee enters
an employer's service is not, in my opinion, wholly terminated so long as the
internal appeal procedure is on foot. And, in my opinion, the reference to a woman
"employed" in the 1975 Act, to a person "employed" in the 1976 Act and to a person
whom the alleged discriminator "employs" in the 1995 Act can and should be given
a purposive construction so as to cover dismissed employees during the currency of
an internal appeal process.
    198 If the opinion I have expressed in the preceding paragraphs is right,
Adekeye [1997] ICR 110 was wrongly decided. The case was one in which the
complainant was dismissed by the Post Office but utilised the Post Office's internal
appeal procedures to appeal against the dismissal. Her appeal was dismissed. She
then instituted proceedings under the 1976 Act contending that the failure of her
appeal was on account of racial discrimination. The Employment Appeal Tribunal
held [1995] ICR 540 that her complaint was not justiciable because at the time her
appeal against dismissal was dealt with she was no longer an employee of the Post
Office. The Court of Appeal agreed.
    199 It is of interest that an argument to somewhat of the same effect as that
which I have attempted in paragraph 197 was addressed to the Court of Appeal in
the Adekeye case [1997] ICR 110. The argument is recorded by Peter Gibson LJ, at
p 118:
        "[counsel] argued that the internal appeal is an integral part of the dismissal
    process and that until the appeal was concluded adversely to the employee, that
    process continued; the rejection of the applicant's appeal was therefore to be
    treated as her dismissal at a time she was employed."
Peter Gibson LJ characterised this as "an impossible argument". He said:
        "the appeal procedures [do] not turn what was worded as an unconditional
    dismissal into a conditional one. Further, to argue that the dismissal did not take
    effect until the conclusion of the appeal is contrary to the decision of this court
    in J Sainsbury Ltd v Savage [1981] ICR 1."
I respectfully agree with Peter Gibson LJ's cited remarks about the unconditional
nature of a dismissal and its immediate effect in terminating the employment but the
thought behind counsel's argument was, in my opinion, valid. The issue was whether
the relationship between employer and employee, or ex-employee, during the
currency of the appeal procedures was a relationship to which section 4(2) of the
1976 Act applied. It does not follow that because the dismissal was immediate and
unconditional the Act could not apply to the relationship that would necessarily
continue until the conclusion of the appeal procedures. In my opinion, for the
reasons given the Act would continue to apply.
    200 Where references or other post-employment benefits are concerned the
question whether the anti-discrimination Acts apply should, in my opinion, similarly
depend on whether the relationship between employer and employee brought into
existence when the employee entered the employer's service is still in existence. For
my part I find it difficult to construct circumstances, other than those arising out of
internal appeal procedures, where the relationship would still continue
notwithstanding the dismissal, or departure for other reasons, of the employee. Lord
Woolf in Spring v Guardian Assurance plc [1994] ICR 596 suggested that
employees in certain types of employment might have an implied contractual right
to a reference, whether before or after their employment had come to an end. If there
were such a case, the continuing responsibility of the ex-employer towards the ex-
employee in regard to references might constitute a continuing relationship
sufficient to justify the application of the anti-discrimination Acts. Another possible
scenario is that of an employee who has been dismissed but is not allowed to return
to his office to remove his belongings. Perhaps Jones v 3M Healthcare Ltd is such a
case. In my opinion every employee who is dismissed is entitled to expect to be
given a reasonable opportunity, under supervision if necessary, to remove his or her
belongings from the premises where he or she was employed. The entitlement might
be founded on implied contract or merely reasonable expectation but in either case I
would regard the relationship between employer and employee as continuing for a
reasonable period for that purpose. A discriminatory refusal to allow the ex-
employee to remove his or her belongings would not, in my opinion, fall outside the
Act.
    201 Special problems arise where the discrimination allegation is, or includes, an
allegation of victimisation. Victimisation (section 4 of the 1975 Act, section 2 of the
1976 Act, and section 55 of the 1995 Act) is not per se unlawful. It is a form of
discrimination that becomes unlawful if it takes place in circumstances in which the
Act declares it to be unlawful, e g in relation to an employed person by subjecting
the person to any detriment (section 6(2) of the 1975 Act). Victimisation does not,
therefore, extend the scope of protection against discrimination. It simply requires a
different comparison to be made than that which has to be made for other forms of
discrimination. If, for example, a reference is refused to an ex-employee as an act of
victimisation, the relevant Act is no more, and no less, applicable than it would have
been if the discrimination had taken some other form. But where the victimisation
claim is brought under the 1975 Act, the position is complicated by the need to take
account of European Community law.
    202 The Coote v Granada Hospitality Ltd litigation arose out of the following
circumstances. Miss Coote, an employee of Granada, brought sex discrimination
proceedings against them. The proceedings were settled and Miss Coote left
Granada's employment. She then sought but failed to find employment elsewhere.
She brought proceedings against Granada alleging that her failure was because, by
way of reprisal for her previous sex discrimination claims, Granada had refused to
supply a reference about her. The Employment Appeal Tribunal sought a ruling
from the European Court of Justice as to whether Council Directive 76/207/EEC
required member states to introduce measures to enable victimised persons in Miss
Coote's position to pursue a claim. The Court of Justice held [1999] ICR 100 that it
did. It said, at p 112, para 19, that 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 provide
    references as a reaction to proceedings brought to enforce compliance with the
    principle of equal treatment within the meaning of the Directive".
    203 This decision and the Directive with which it was concerned apply to sex
discrimination cases only. They do not apply to race discrimination or disability
discrimination cases. Following the ruling by the Court of Justice, the case returned
to the appeal tribunal. The appeal tribunal held [1999] ICR 942 that, in the light of
the Court of Justice ruling, the words "a woman employed by him" in section 6(2) of
the 1975 Act should be construed, in conformity with the Directive, as covering
discrimination against former employees. Morison J declined to follow Post Office v
Adekeye [1997] ICR 110. He held that the Court of Justice ruling had relieved him
of the need to do so. In my respectful opinion it had not. There is no difference
between the words used in the 1975 Act and those used in the 1976 Act with which
Adekeye was concerned. The Court of Appeal decision on the 1976 Act words was
just as applicable to the words in the 1975 Act. Moreover, the Directive did not have
direct effect in the domestic law of this country. It required, if its terms differed
from domestic law, to be implemented in domestic law by primary or subordinate
legislation. I, of course, accept that domestic legislation intended to implement a
Directive should, if possible, be construed in a manner consistent with the Directive.
But the 1975 Act was not passed in order to implement Directive 76/207. It
preceded the Directive. It may be that the government believed that no
implementation measure was necessary because the 1975 Act did all that was
required to comply with the Directive. But the Court of Appeal decision in Adekeye,
coupled with the Court of Justice decision in Coote, showed, in my opinion, that that
was not so. I do not think it was open to Morison J to disapply Post Office v
Adekeye.
    204 In my opinion, save for cases where the relationship between employer and
employee is still continuing notwithstanding the termination of the employment, the
conclusions of the Court of Appeal in Adekeye were correct and should be followed.
Directive 76/207 has now been amended by a new Directive 2002/23/EC, which
must be implemented at latest by 5 October 2005. If and to the extent that domestic
law is inconsistent with these Directives it is for the government and Parliament to
provide the remedy and not, in my opinion, for the courts to do so.
    205 I must now return to the individual appeals.
        (1) Rhys-Harper v Relaxion Group plc. I would allow the appeal in this case.
    The applicant complains of sex discrimination in her ex-employer's handling of
    her appeal against dismissal. A complaint of that character is, in my opinion,
    covered by section 6(2) of the 1975 Act.
        (2) D'Souza v Lambeth London Borough Council. I would dismiss this
    applicant's appeal for the reasons given by my noble and learned friend, Lord
    Nicholls of Birkenhead. The statutory remedy of reinstatement is associated with
    the statutory alternative of compensation if reinstatement can be shown to be
    impracticable. It was so shown in proceedings to which the applicant was a party
    and by which he is bound. There is no room for a complementary claim that the
    council's failure to reinstate him was discriminatory.
        (3) In each of Kirker v British Sugar, Angel v New Possibilities NHS Trust
    and Bond v Hackney Citizens Advice Bureau the alleged acts of discrimination
    occurred after the relationship between the applicant and his or her ex-employer
    had come to an end. None of the applicants was, at the time, "a person whom
    [the alleged discriminator] employs" (section 4(2) of the 1995 Act). I would
    dismiss these appeals.
        (4) In Jones v 3M Healthcare Ltd the courts below dismissed the case on the
    ground that at the time the alleged act of discrimination took place the applicant
    was no longer a person whom 3M Healthcare Ltd "employs". In my opinion, the
    applicant was entitled to a reasonable opportunity to remove his belongings,
    including his business cards, from the premises where he was previously
    employed. The relationship between him and his ex-employer that had been
    brought into existence when he entered their employ continued for that purpose
    during that period. If he had sought to remove his cards during that period and
    had been prevented from doing so as an act of victimisation, the case would in
    my opinion have been covered by the 1995 Act. But he was dismissed in
    November 1997, his proceedings for unfair dismissal and disability
    discrimination were dismissed in August 1998 and he did not request the return
    of his cards until September 1999. A reasonable time for him to remove his
    belongings from his ex-employer's premises and to request their return had
    elapsed long before September 1999. By September 1999 the relationship
    between the applicant and 3M Healthcare Ltd had long since come to an end.
    His complaint is not in my opinion covered by the Act and I would dismiss his
    appeal.
    206 Save that I have formed the view that the applicability of the three Acts
should be tied to the continuance of the relationship between employer and
employee rather than to the duration of the actual employment, I am in respectful
agreement with the views about these appeals and the issues they give rise to that
have been expressed by my noble and learned friend, Lord Hope of Craighead.

LORD RODGER OF EARLSFERRY

    207 My Lords, on one level these appeals raise a short point of construction of
the words "a woman employed by him" in section 6(2) of the Sex Discrimination
Act 1975, "a person employed by him" in section 4(2) of the Race Relations Act
1976 and "a person whom he employs" in section 4(2) of the Disability
Discrimination Act 1995. In substance, however, the House has to decide whether,
as the Court of Appeal have held, in terms of these anti-discrimination Acts it is
quite lawful for employers to discriminate against their former employees in
circumstances where it would be quite unlawful for them to discriminate against
their current employees.
    208 I gratefully adopt the detailed accounts of the facts and issues given by my
noble and learned friends, Lord Nicholls of Birkenhead and Lord Hope of
Craighead. As they show, allowing for the distinctive features of the 1995 Act, the
objectives and, to a greater or lesser degree, the structure and terms of the three Acts
are similar. Precisely because of that, it has come to be accepted that an
interpretation of the wording of one Act will be a guide to the interpretation of the
equivalent wording in another Act. Most notably, in Anyanwu v South Bank Student
Union (Commission for Racial Equality intervening) [2001] ICR 391, 393, para 2,
Lord Bingham of Cornhill said:
        "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."
    True to that spirit, in the hearings before the House counsel referred
indiscriminately to authorities on the interpretation of the provisions in all three
Acts. Nor did they suggest that any approach other than that indicated by Lord
Bingham would be realistic or appropriate, even though, of course, the 1975 Act has
to be interpreted in the light of the Equal Treatment Directive 76/207/EEC, whereas
there is at present no equivalent European dimension lying behind the other Acts.
    209 Discrimination can take a variety of forms but all involve treating the person
concerned less favourably than others. The law does not attempt to outlaw every
form of undesirable discrimination. In Great Britain it concentrates on
discrimination on the ground of sex, race and disability and then only in certain
circumstances, including the employment field. In Northern Ireland the Fair
Employment and Treatment (Northern Ireland) Order 1998 (SI 1998/3162 (NI21))
adds discrimination on grounds of religious belief and political opinion. Before sex
and race discrimination were made unlawful, employers would sometimes try to
preserve the all--male or all--white character of their workforce by simply refusing
to take on women or ethnic minority job applicants. Similarly, employers might
refuse to employ disabled people in order to avoid having to make even minor
adjustments for them. The three anti-discrimination Acts make such tactics
unlawful: section 6(1)(c) of the 1975 Act and section 4(1)(c) of both the 1976 and
1995 Acts. Another form of discrimination was to offer to employ people but on less
favourable terms. That is outlawed by paragraph (b) of the same subsections.
Moreover, once the person is employed, the employer cannot discriminate by
actually affording him less favourable terms of employment: section 4(2)(a) of both
the 1976 and 1995 Acts. In the case of sex discrimination the mechanism is
different: section 1 of the Equal Pay Act 1970 implies an equality clause into all
contracts of employment. Where these provisions are observed, they go a long way
towards ensuring that everyone has access to employment and enjoys the same
contractual rights. If the employer fails to comply with his obligations under the
contract of employment, the employee concerned has the usual remedies for breach
of the contract.
    210 Ensuring that all employees in similar positions have the same contractual
rights is only a start. Employment is just as much about opportunities as about
rights. Not for nothing was the body which was set up under the 1975 Act called the
Equal Opportunities Commission. Employees do not have a contractual right to
promotion, but they should have an opportunity to earn it. Similarly, certain types of
training, with the prospect of a better job, may only be available to employees
selected by the employer. The selection should be made fairly. The employer may
run a social or recreational club which employees can apply to join. Again everyone
should have an equal opportunity to join if they want to. If an employer were free to
discriminate in these areas, which do not involve contractual rights as such, then
those affected would be marginalised and unable to achieve their full potential. So
one important purpose of the anti-discrimination Acts is to prevent employers from
exercising their freedom of choice in such matters so as to discriminate against
employees on the ground of their sex, race or disability. That is achieved by the
provisions which lie at the heart of these appeals. In the case of the 1975 Act the
relevant provision is section 6(2), but it is convenient to set out subsection (1) also:
              "(1) It is unlawful for a person, in relation to employment by him at an
         establishment in Great Britain, to discriminate against a woman--
              (a) in the arrangements he makes for the purpose of determining who
         should be offered that employment; or
              (b) in the terms on which he offers her that employment, or
              (c) by refusing or deliberately omitting to offer her that employment.
              "(2) 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."
As subsection (2) shows, the anti-discrimination Acts are not really concerned with
employees' rights under their contracts of employment. So, for instance, where a
contract of employment is tainted by illegality, an employee may none the less
complain that her employer discriminated against her on the ground of her sex by
dismissing her, since both the Equal Treatment Directive and the 1975 Act are
designed to provide effective relief in respect of discriminatory conduct "rather than
relief which reflects any contractual entitlement which may or may not exist": Hall v
Woolston Hall Leisure Ltd [2001] ICR 99, 119F--G, para 67, per Mance LJ. As
Peter Gibson LJ put it, at p 113B-C, para 46:
         "It is the sex discrimination that is the core of the complaint, the fact of
    employment and the dismissal being the particular factual circumstances which
    Parliament has prescribed for the sex discrimination complaint to be capable of
    being made."
Mummery J had made the same point when, in giving the judgment of the
Employment Appeal Tribunal in Leighton v Michael [1995] ICR 1091, 1098G, he
said that the claim of sex discrimination "does not involve enforcing, relying on or
founding a claim on the contract of employment". Employees invoke the Acts not to
enforce their contractual rights but to enforce their statutory rights not to suffer
discrimination "in the employment field", inter alia, in respect of the opportunities to
which the employer affords access.
    211 Therefore, although being employed is one of the keys which unlocks access
to the rights and remedies conferred by the anti-discrimination Acts, to a
considerable extent those Acts are actually concerned with discrimination in relation
to the various kinds of opportunities that employees may enjoy in addition to any
contractual rights. Of course, not even all contractual rights end on the termination
of employment: an employee may still have both rights and obligations under the
contract. Most obviously, an employee may have a right under his contract to be
paid a pension or to continue to enjoy free medical insurance, while he may also be
bound by a restrictive covenant in the contract. Not only an employee's rights and
obligations under the contract of employment can continue after the employment
itself comes to an end: an employer may continue to afford his former employees
opportunities to enjoy some of the additional non-contractual benefits, such as
access to sports or other recreational and social facilities. Since the anti-
discrimination Acts are not tied to contractual rights and obligations, there is in
principle no reason why the Acts should cease to have effect in respect of these
continuing opportunities. I therefore have difficulty in seeing why Parliament,
however cautious its approach, would ever have intended that it should be lawful for
an employer to discriminate against a former employee in these respects. The idea,
for instance, that Parliament intended that, after the 1976 Act was in force, an
employer should still be able to bar a black former employee from entering the
employer's social club while allowing white former employees to continue to enjoy
the facility strikes me as untenable.
    212 The same applies to the provision of references. In some cases the employee
may have a contractual right, whether express or implied, to be supplied with a
reference. But even where that is not so, since an employee or former employee will
often stand little chance of getting a new job without a reference, an employer will
recognise at least a moral duty to provide one: Spring v Guardian Assurance plc
[1994] ICR 596, 628F, per Lord Slynn of Hadley. And in providing the reference he
owes a duty of care to his employee or former employee. Again, I have the greatest
difficulty in believing that Parliament could have intended that it should be unlawful
for an employer to discriminate in giving or withholding references for existing
employees but perfectly lawful for him to do so in the case of ex-employees.
Parliament often has to draw lines--and indeed does so explicitly in various ways in
the anti-discrimination Acts, e g by limiting their application in the case of domestic
employment. It is not hard to see the reason for that. It is very much harder to see
why Parliament would have chosen to draw an arbitrary line through the continuing
effects of the employment relationship rather than leave the ban on discrimination to
expire as and when those effects themselves were spent. In particular, I am not
impressed by the spectre of the supposed difficulties for employers if proceedings
could be brought for discrimination in failing to provide a reference or in providing
an unsatisfactory reference some time after the employee had left his employment. If
such proceedings were brought, there is little reason to suppose that the difficulties
for the employer would be significantly greater than those entailed in defending a
negligence claim in relation to a request for a reference made at about the same
time. And, of course, in any such proceedings the applicant will have to show that
the former employer treated him or her less favourably than other former employees
in similar circumstances.
    213 As an argument against holding that the Acts make it unlawful to
discriminate against former employees, it is pointed out--correctly--that the pre-
legislative materials make no mention of discrimination against them. Moreover, it
is said, if the draftsman of section 6 of the 1975 Act, for instance, had intended to
cover former employees, he might have been expected to do so specifically in a
separate subsection (3), to mirror subsection (1) dealing with job applicants. These
arguments, which are interlinked, really amount to saying that the lack of any
positive sign that Parliament considered the position of former employees shows
that it did not in fact intend to make discrimination unlawful in the case of former
employees. So in Rhys-Harper v Relaxion Group plc [2001] ICR 1176, the Court of
Appeal were correct to interpret subsection (2) as they did.
    214 At first sight the argument may appear quite persuasive, on mature
reflection less so. For the reasons I have given, I do not find the lack of discussion of
the particular position of former employees significant. What would have been
significant, not to say remarkable, would have been any hint that the government of
the day, or Parliament itself, ever contemplated that it was to remain lawful for
employers to discriminate against former employees on, say, racial grounds. So far
as the drafting of the sections is concerned, if discrimination against job applicants
was to be outlawed, a separate provision was obviously necessary since on no view
can they fall within subsection (2). That subsection is drafted to deal with the very
different situation of people who have gone a step further and have actually been
employed. Former employees are different from job applicants in this respect. Some
of the kinds of discrimination listed in subsection (2)--e g failing to offer
opportunities for promotion or dismissing someone--are such that only a current
employee can be subjected to them. Others could apply to both current and former
employees. It is not suggested that there is some other class of conduct by employers
that would have to be made unlawful solely in the case of former employees.
Therefore, the provision as drafted, making it unlawful for employers to
discriminate against employees in various ways, could in principle operate perfectly
satisfactorily in respect of former employees without there being any need either to
discuss their position separately or to make separate provision for them in a further
subsection. Everything thus depends on whether the wording of the provision in
subsection (2) is capable of covering both current and former employees--which is
simply the point at issue.
    215 The words in section 6(2) of the 1975 Act which are said to confine the
provision to current employees are "a woman employed by him at an establishment
in Great Britain". They comprise the noun phrase "a woman" and the non-finite
clause "employed by him at an establishment in Great Britain" which modifies the
noun phrase. In that clause "employed" is a passive participle and, as such, it is
inherently ambiguous. Discounting any other possibility, the words may be the
equivalent of "a woman who is employed by him at an establishment in Great
Britain" or "a woman who is or was employed by him at an establishment in Great
Britain". One cannot tell how the participle is to be interpreted from looking at these
words alone: it must be interpreted in the context of the provision as a whole. Often
the wider context in which the participle is used will point definitely one way or the
other. So, for instance, if I say "John is very worried about productivity in his firm
and is inviting everyone employed by him to a meeting to discuss improvements",
the obvious meaning is that the invitation is addressed to current employees. On the
other hand, sometimes the context may not fully resolve the matter. If I say "John,
who has been in business for 20 years, is inviting everyone employed by him to a
party to celebrate", someone listening to me might not be sure what to expect but he
would not be unduly surprised to find former as well as current employees at the
party. Similarly, in my view, the context of the words within the legislative sentence
in section 6(2) leaves the matter open: looked at merely in that context, the passive
participle could be interpreted in either way. Although most of the opportunities
listed in paragraph (a) may be relevant only to current employees, the examples that
I have already given are enough to show that the paragraph could sensibly apply to
the situation of former employees, while in paragraph (b) the notion of "subjecting
someone to a detriment" is so broad that, indisputably, it could apply to refusing a
reference to a former employee, for instance. Unlike section 6(2), section 4(2) of the
1976 Act uses the word "employee" but, as Pill LJ noted in Rhys-Harper v Relaxion
Group plc [2001] ICR 1176, 1182, para 13, the presence or absence of that term
cannot be critical to the interpretation of these provisions. In what is largely a matter
of impression, I am respectfully unable to share the view of Peter Gibson LJ in Post
Office v Adekeye [1997] ICR 110, 118B that in section 4(2) of the 1976 Act the
crucial words can only mean "in the case of a person who is employed by him".
Since that is not the only possible meaning in either the 1975 or 1976 Act, the wider
considerations discussed above persuade me that the provisions should be
interpreted as making it unlawful to discriminate against former employees as well
as current employees if there is a substantive connection between the discriminatory
conduct and the employment relationship. In other words the former employer must
discriminate qua former employer. I find nothing in the other provisions on
employment in the statutes to invalidate that interpretation. Despite the difference in
language, there is no indication that Parliament intended the 1995 Act to be different
in this respect. Therefore, given the similarity of the general aims of the anti-
discrimination Acts, I would interpret the words "a person whom he employs" in
section 4(2) in the same way. The House is not called on in these appeals to decide
whether the duty in section 6 of that Act also applies in the case of former
employees.
     216 I should add that, even if I had not been disposed to construe section 4(2) of
the 1976 Act in this way, I should in any event have concluded that the decision in
Post Office v Adekeye [1997] ICR 110 was wrong on the basis of the narrower line
of reasoning adopted by my noble and learned friend, Lord Scott of Foscote.
Unfortunately, in an organisation where racial discrimination is practised an
employee is just as liable to encounter it in the internal appeal as in the original
dismissal. Reluctantly, the Court of Appeal felt obliged to hold, however, that, while
it would have been unlawful for the Post Office to discriminate against Ms Adekeye
when dismissing her, it would have been perfectly lawful for them to do so when
determining her internal appeal from that self-same dismissal. The result is so
startling as in itself to cast doubt on the construction. And indeed, even on a fairly
strict construction, it would not have been difficult to regard the applicant as "a
person employed by" the Post Office in terms of section 4(2). After all, at the time
of the internal appeal the employment relationship was not severed irrevocably: if
the appeal had succeeded, the applicant would have been reinstated as an employee.
Only a rather literal, as opposed to a purposive, reading of the words "a person
employed by him" would lead to the conclusion that someone in that twilight zone
was no longer "employed" and had lost her rights under section 4(2). For the reasons
I have given, however, I prefer to approach the matter on the footing that, even if Ms
Adekeye was indeed to be regarded as a former employee at the time of her internal
appeal, she was still within the scope of section 4(2).
    217 Compelling support for the interpretation of section 6(2) of the 1975 Act
which I prefer is to be found in the Community law background. The 1975 Act,
which was passed while the Equal Treatment Directive was in preparation, was not
subsequently amended when the Directive came into force. In that situation, of
course, as was explained by the Court of Justice in Marleasing SA v La Comercial
Internacional de Alimentación SA (Case C-106/89) [1990] ECR I-4135, 4159, para
8, when interpreting the 1975 Act, any tribunal or court in this country
         "is required to do so, so far as possible, in the light of the wording and the
    purpose of the Directive in order to achieve the result pursued by the latter and
    thereby comply with the third paragraph of article 189 of the Treaty."
In Coote v Granada Hospitality Ltd the applicant first brought a claim against her
employers alleging that they had discriminated against her on the ground of her sex
by dismissing her because she was pregnant. That claim was settled but she later
brought further proceedings complaining that she was unable to obtain new
employment because, in retaliation for her previous proceedings against them, her
employers had consistently failed to provide references when asked to do so. More
particularly, her complaint was that, in terms of sections 4(1)and6(2)(b) of the 1975
Act, it had been unlawful for her employers to discriminate against her by subjecting
her to the detriment of failing to provide her with references when they would have
provided them to persons who had not previously complained of sex discrimination.
For present purposes what matters is that, in order to succeed, the applicant, who
was no longer employed by the employers at the time of the alleged discrimination,
had none the less to be regarded as "a woman employed by" Granada Hospitality for
the purposes of section 6(2). Consideration of this point in turn raised an issue as to
the effect of the Equal Treatment Directive which the Employment Appeal Tribunal
referred to the Court of Justice in November 1996, just a week after the Court of
Appeal had given judgment in Post Office v Adekeye [1997] ICR 110.
    218 Article 5(1) of the Equal Treatment Directive provides:
         "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."
Articles 6 and 7 are in these terms:
         "6 Member states shall introduce into their national legal systems such
    measures as are necessary to enable all persons who consider themselves
    wronged by failure to apply to them the principle of equal treatment within the
    meaning of articles 3, 4 and 5 to pursue their claims by judicial process after
    possible recourse to other competent authorities.
         "7 Member states shall take the necessary measures to protect employees
    against dismissal by the employer as a reaction to a complaint within the
    undertaking or to any legal proceedings aimed at enforcing compliance with the
    principle of equal treatment."
Despite the specific reference to retaliation by way of dismissal in article 7, in Coote
v Granada Hospitality Ltd (Case C-186/97) [1999] ICR 100, 113, paras 27 and 28,
the Court of Justice held that, having regard to the objective of the Directive and the
fundamental nature of the right to effective judicial protection:
         "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."
The appeal tribunal then had to apply the guidance given by the Court of Justice to
the interpretation of section 6(2) of the 1975 Act. They were faced with an argument
by the employers that the proper construction of that provision had in effect been
settled by the decision of the Court of Appeal in Adekeye [1997] ICR 110 on the
interpretation of section 4(2) of the 1976 Act. The appeal tribunal rejected that
argument, in the end because they considered that they had to apply the decision of
the Court of Justice. Having examined the language of section 6(2), and in order to
achieve the result pursued by article 6 of the Directive as interpreted by the Court of
Justice, the appeal tribunal found it possible to hold, and did indeed hold, that the
words "a woman employed by him" were apt to cover a former employee, such as
the applicant, complaining of victimisation: Coote v Granada Hospitality Ltd (No 2)
[1999] ICR 942. The employers did not appeal.
     219 In Rhys-Harper v Relaxion Group plc [2001] ICR 1176, 1184-1185, paras
23-26, Buxton LJ sharply criticised the decision of the appeal tribunal in Coote (No
2) on the ground that it had not been open to them to do other than apply Post Office
v Adekeye. Unlike Lord Scott of Foscote, I am very doubtful whether that criticism
was justified, given the duty imposed on the appeal tribunal by article 249 (ex 189)
of the EC Treaty and by the Marleasing line of authority. The Court of Justice had
indeed restated that duty in Coote v Granada Hospitality Ltd [1999] ICR 100, 110,
para 18. It is unnecessary, however, to go into the question on this occasion since
any supposed constraint imposed by Post Office v Adekeye falls away once that
decision is itself seen to have been incorrect. As I have noted already, in the context
of section 6(2) the words "a woman employed by him" are ambiguous. In that
situation I consider that in Coote (No 2) Morison J was correct to hold that the
appeal tribunal could, and therefore should, interpret them in such a way that section
6(2) would apply to a former employee who complained of victimisation. I note
that--before Buxton LJ's comments--in Hall v Woolston Hall Leisure Ltd [2001]
ICR 99, 116, para 59, Mance LJ, with whom Moore-Bick J agreed, cited the
decision of the appeal tribunal in Coote (No 2) [1999] ICR 942 as an illustration of
the kind of approach to interpretation that the decision in Marleasing [1990] ECR I-
4135 required of a court.
     220 As Lord Nicholls of Birkenhead has pointed out, the interpretation of the
critical words in section 6(2) which is required by the ruling of the Court of Justice
in Coote [1999] ICR 100 cannot be confined to cases of victimisation. The words of
the subsection cannot mean one thing in victimisation cases and something else in
other cases. What constitutes discrimination for purposes of section 6(2) is to be
found in Part I of the Act, including both sections 1 and 4. So, if it is unlawful for an
employer to "discriminate" against a former employee in terms of section 6(2) by
victimising her under section 4(1), it must equally be unlawful for the employer to
"discriminate" against a former employee in terms of section 6(2) by treating her
less favourably on the ground of her sex under section 1(1). This confirms the
conclusion, reached on an examination of the domestic law, that section 6(2) applies
generally so as to make it unlawful to discriminate against former as well as current
employees. The equivalent words in the other Acts fall to be interpreted in the same
way.
     221 For these reasons, and for those given by Lord Nicholls of Birkenhead, I
respectfully agree with his interpretation of the relevant provisions in the three Acts.
I also agree both with the way he would apply that interpretation in the individual
appeals and with what he says about the separate issue in D'Souza v Lambeth
London Borough Council. I would accordingly refuse that appeal but allow the
others.

First appeal allowed with costs. Case remitted. Second appeal dismissed with costs.
Third to sixth appeals allowed with costs. Cases remitted.

								
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