Appeal No.	EAT/1332/95

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 18 May 1999
Judgment delivered on 19 May 1999

Before
THE HONOURABLE MR JUSTICE MORISON (PRESIDENT)
MR D J JENKINS MBE
PROFESSOR P D WICKENS OBE

MS B J COOTE	APPELLANT

GRANADA HOSPITALITY LTD	RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MS D ROSE
(of Counsel)
Equal Opportunities Commission
Overseas House
Quay Street
Manchester
M3 3HN	
For the Respondents	MR D PRESTON
(of Counsel)
The Preston Partnership
Market Chambers
33 Market Place
Henley-on-Thames
RG9 2AA	

	MR JUSTICE MORISON (PRESIDENT):	The appellant was employed by Granada Hospitality Limited [Granada] from December 1992 until September 1993 as a bowling centre manager earning more than £20,000 p.a..   In 1993 she brought a claim against her employers alleging unlawful discrimination on grounds of sex under the Sex Discrimination Act 1975.   In essence, it was her claim that she had been dismissed on the grounds of her pregnancy and, therefore, unlawfully.   That claim was compromised.   Subsequently, the appellant presented a second complaint to the Employment tribunal alleging that 

“Since July 1994, I have been attempting, so far unsuccessfully, to obtain full time employment.   My efforts have been in vain as Granada ... have consistently failed to provide references when requested.   This is despite assurances from the Personnel director ... to the contrary.   This action by Granada is preventing me from obtaining employment and amounts to victimisation contrary to section 4 of the Sex Discrimination Act 1975.”

	The IT1 identified the type of complaint that was being made as “victimisation” and the date when the action of which complaint was made as “ongoing from August 1994”.

	When the case came before Mr Flint, Chairman, sitting alone, he concluded that the tribunal did not have jurisdiction to entertain the complaint as the employment relationship had to be subsisting at the date when the act of victimisation was done.   Reference was made to Adekeye v Post Office.   During her evidence, the appellant said that she believed that the decision not to give her any reference was taken before she ceased to be an employee.   The learned Chairman said this:

“If this is so, and I must emphasise that there is no evidence one way or the other whether it really is so, then it does not seem to me to make any difference.   it seems unlikely that the decision not to provide a reference, if taken during the period of employment, could during that period of employment, have produced a detriment to the Applicant.   She would have to show not only that the decision was taken during the course of her employment, but that also she had during the course of that employment failed to obtain another job by reason of that decision.   That this was so was not established to my satisfaction and my finding on this is that as it appears that she did not apply for employment until after her employment with the Respondents had ceased, she would again be unable to make a claim which is within the jurisdiction of the Industrial Tribunals even if the decision not to provide a reference was taken while she was still an employee.”

	The appellant appealed and the EAT made a reference to the European Court of Justice.   Two questions were asked.   The first question was whether Council Directive 76/207/EEC [the Equal Treatment Directive] requires member states to introduce into their national legal systems such measures as are necessary to enable a complainant to pursue a claim by judicial process when the employer refused, after the end of the complainant’s employment, to provide a reference by reason of the fact that she had made a previous complaint of unlawful discrimination against him.   The second question was whether it made any difference if the decision not to give a reference was made during the course of her employment.   

	The reference was made after the Court of Appeal had handed down its judgment in Adekeye [1997] ICR page 110.   

	The ECJ gave judgment on 22 September 1998.   The effect of its decision may be summarised in this way:

	First the Court reminded national courts that there was an obligation on them, when applying national law, to interpret it, so far as possible, in accordance with the wording and purpose of a Directive so as to achieve the result pursued by the third paragraph of Article 189 of the Treaty [“a directive shall be binding, so far as the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods”].   Second, it concluded that by reason of article 6 of the Directive Member States must take such measures as are sufficiently effective to achieve the aims of the Directive and that the rights thus conferred can be effectively relied upon before the national courts by the person affected.    Third, the principle of effective judicial control laid down in Article 6: 

“would be deprived of an essential part of its effectiveness if the protection it provides did not cover measures which, as in the main proceedings in this case, an employer might take as a reaction to legal proceedings brought by an employee with the aim of enforcing compliance with the principle of equal treatment.   Fear of such measures, where no legal remedy is available against them, might deter workers who considered themselves the victims of discrimination from pursuing their claims by judicial process, and would consequently be liable seriously to jeopardise implementation of the aim pursued by the Directive.
...
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 as a reaction to legal proceedings brought to enforce compliance with the principle of equal treatment within the meaning of the Directive.”

	This Court is now asked to give effect to the ECJ’s judgment and to decide the appeal on the basis of it.

	There are two issues which arise on this appeal.   First, is it possible to construe section 6(2) of the Act to include claims by ex (or former) employees?   If not, and in any event, secondly were the Employment Tribunal correct in law to hold that even if the decision not to give the appellant a reference was taken during her employment her claim fell outwith section 6(2).

	We are grateful to both counsel for their assistance.   On behalf of the Appellant, Ms Rose adopted the formulation of the Court’s task as the ECJ had expressed it.   It seems to us, en passant, that the question whether the Court can add words to a statute so as to give effect to the purpose of a Directive, should not depend on whether the legislation in question was or was not enacted so as to give effect to the Directive.   There is a line of authority, including the decision of the House of Lords in Litster, where words were added.   That was a case where the House was considering whether the Transfer of Undertakings (Protection of Employment) Regulations gave effect to the Acquired Rights Directive as it was intended to do.   But it seems to us that the distinction between an Act which was designed to give effect to a Directive and one which was not may be difficult to draw, as in this case.   Technically, the Act preceded the Directive by two months, although the Directive had clearly been in draft in December 1975 when the Act took effect.   From time to time it was amended in the light of rulings from the ECJ on the ambit of the Equal Treatment Directive.   Amendments were made pursuant to powers contained in section 2 of the European Communities Act 1972 rather than by an amending Act.   The UK Government introduced no domestic legislation purporting to give effect to this Directive on the basis that the Act constituted compliance with the United Kingdom’s Treaty obligations.   The ECJ itself considered that the 1975 Act was “specially introduced in order to implement the Directive”, as in a real sense it must have been when it was first amended.   

	However, in this case, we do not have to decide whether it would be open to the court to construe the Act by adding words to it so as to bring it into conformity with the Directive, because we have been persuaded that the addition of words to give effect to the European Court’s ruling is not required.

	The main issue before this Court is whether it is possible to construe the 1975 Act so as to enable a claimant to make a victimisation complaint in relation to events that occurred after the employment relationship had terminated.

	On behalf of the employers, Mr Preston submitted that to construe the Act so as to accommodate the appellant’s claim would require the Court to distort the meaning of the statute or re-write it [see Duke v Reliance Systems Limited [1988] ICR 339 at 352].   Neither was a permissible option.   This part of the appeal is, he submitted, effectively determined by the Court of Appeal’s decision in Adekeye.   We were referred to certain passages in the judgment of Gibson LJ, and although it is accepted that the Court was not dealing with the precise point at issue in this case, and that what it said about the Sex Discrimination Act was, strictly, unnecessary to its decision, we were invited to regard the decision as effectively determinative of the issues raised in relation to the first issue.   

	As to the second issue, it was argued that the EAT was being asked to decide a hypothetical question.   There were no facts upon which the tribunal could find that the decision had been made during her employment.    Such a claim is inconsistent with what was said in the IT1 as the date when the unlawful action was taken against her.   In any event, the detriment or effect of the absence of a reference needed to occur during the employment, as the Chairman suggested.

	Ms Rose submitted that it was possible to construe the Act so as to give effect to the ECJ’s ruling.   She agreed that the Adekeye decision was, technically, not binding on this Court on the issue before us and she submitted that, in any event, the decision of the Court of Appeal does not bear close analysis, and she made submissions abut the various passages on which Lord Justice Gibson relied.   She noted that the Court expressly refused to take account of the Directive when reaching its conclusion, on the grounds that it had no application to racial discrimination.   She submitted that “in these circumstances, the decision of the Court of Appeal on that point of construction does not preclude this tribunal from interpreting the SDA consistently with the decision of the ECJ.” But even if it did, then she submitted that the EAT was bound to give effect to the ECJ’s decision since a court could not be bound to refuse to make a reference by reason of a higher court’s decision.   Since the lower court could make a reference it must be assumed that when it has received the ECJ’s ruling it was competent and required to act upon it.   We were referred to Rheinmuhlen [1974] ECR 33 at paragraph 4, page 38 and again at page 43.

	As to the second ground of appeal, she submitted that the tribunal had clearly erred in law.   If there was a deliberate decision taken during her employment that because she had made a previous complaint Granada would not provide her with a reference, her ‘cause of action’ was complete.   She would have been either subjected to a detriment there and then or alternatively would have been denied access to a facility or service during her employment which would found a claim.   Damage is not an essential ingredient in a claim for unlawful discrimination, as the Act makes clear, since the tribunal may simply make a declaration, rather than award compensation.   Unlawful discrimination falling within section 6 does not require the complainant to prove actual damage, merely the ingredients of section 6 and section 1 or section 4 as the case might be.

The decision
Section 6(2) of the Act provides that:

“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 the Court of Appeal accepted in Adekeye the words “a woman employed by him” are “as a matter of grammar” capable of meaning “who is employed” or “who has been employed”, or, presumably, both.   As the EAT pointed out in Nagarajan v Agnew [1995] ICR 520, a decision referred to by the Court of Appeal with approval, it is grammatically possible to say that although “opportunities for promotion, transfer or training” must logically only apply to present employees, the words “access to any other benefits, facilities or services” are apt to include both present and former employees.   Equally, whilst only a present employee could be dismissed, a present or former employee could be subjected to any other detriment, as in this case.   Thus, without constraint, the EAT could, as it seems to us, give effect to the judgment of the ECJ without distorting the language of the Act.   In other words it is possible to construe the Act in a way which is in conformity with the Equal Treatment Directive.

	What then is the effect of the Court of Appeal’s judgment, which is recognised by both counsel not to be binding in relation to the Sex Discrimination Act.   Both parts of the discrimination legislation were regarded by the Government of the day as being part of a piece.   The White Papers preceding them make that clear.   In almost all respects the language of the two Acts is identical, as are the concepts within them.   It was plainly Parliament’s intention that they should be construed in the same way.   We are instinctively reluctant to adopt an argument which leads to two different results.   

	We have, therefore, with counsel’s assistance, given careful thought to the reasoning in Adekeye.

	As we understand it the Court placed reliance on the fact that section 4 [in this case section 6] is drafted in the present tense.   But with great respect it seems to us 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.   

	Secondly, the Court was of the view that there was no room for the application of the ‘access to benefits’ to ex-employees, since access would “seem to me likely to occur during employment”.   During the course of argument, quite apart from the important matter of references, to which the Court made no reference, a number of matters were raised, and the Court itself, in its deliberations has considered others: for example, the continued use of sports facilities to retirees, the payment of bonuses to present and former staff and the provision of concessionary travel facilities.   All these matters might be decided or altered after the employment had ceased.   If Mrs Garland (Garland v British Rail Engineering Ltd [1983] 2 AC 751)had been employed by a privatised railway company, so that she could not rely on the direct effect of the Directive, is it to be said that she, or her partner, fell outside section 6 because she had ceased to be employed?   Suppose that the ‘Ideal Railway Company’ decided that all existing male pensioners should lose their concessionary travel at age 70 whereas women could enjoy  them until they were 75.   The access to the facility of concessionary travel facilities would aptly fall within the words “in the way he [the employer] refuses or deliberately omits to afford the male retirees access to benefits facilities or services.”   It is the experience of this Court that for many different purposes the contact between employer and former employee may continue after the employment relationship has ceased.   It would, we respectively think, be wrong to suggest that the construction for which Ms Rose contends [as Mr Allen had contended to the Court of Appeal] would somehow be empty of practical effect.   

	Third, the court placed reliance on the definition of “employee” in the 1978 [now the 1996] Act.   Section 230 of the 1996 Act defines employee to mean someone who is or was in employment.   Lord Justice Gibson said “there is no equivalent extension in the Act of 1976”.   With great respect, there is no definition of ‘employee’ in either the Sex Discrimination Act or the Race Relations Act.   The fact that there was an extended definition in the 1978 Act of an employee and no definition of employee in the discrimination legislation seems to us to have no significance and could not support the conclusion advanced.

	Fourth, some weight was given to the words “that employee” in section 4 of the 1976 Act.   If that reference has significance, it is to be observed that those words do not appear in the Sex Discrimination Act.

	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.    However, the Court expressly rejected Mr Allen’s argument that reference could be made to the Sex Discrimination Act and to European materials: “I know of no authority that compels so extraordinary a result”.   Furthermore, the Court noted that Mr Allen had been: 

“unable to point to any relevant interpretation of [the Equal Treatment Directive] laid down by the ECJ.   It seems to me to be open to argument whether the words of the Directive “working conditions, including the conditions governing dismissal” are apt to cover an appeal procedure where the dismissal has already occurred.”   

	The ECJ decision in this case determines the argument to which the Lord Justice was referring.   On this basis, we do not regard the decision in that case as constraining us from arriving at our conclusion that Ms Rose’s construction of section 6 of the 1975 Act is correct: both as a matter of language and Parliamentary intention and in the light of the ECJ decision.   In any event, we accept her further argument that the supremacy of the ECJ’s decisions would be undermined were a lower court to feel obliged to follow a higher court’s decision in preference to giving effect to what the European Court of Justice has determined.

	It follows, therefore, that we regard Ms Coote’s complaint as falling within section 6 of the Sex Discrimination Act 1975 both because of the language of the section and because it brings the section into conformity with the Directive.   It follows, therefore, that the second point does not arise.   Had it done so we would have found in Ms Coote’s favour on it for the reasons advanced by Ms Rose.   Whether such a contention is open to her is another matter, as is the question of any application for leave to amend the IT1.   Those issue will fall to be determined by the Employment Tribunal.   What is now required is a determination of her complaint before a full tribunal.   Although no point was taken about it, we have reservations about the legality of a Chairman sitting alone and dismissing a discrimination complaint, as happened here.

	Finally, we have been concerned with the potential ‘knock-on’ effect that this decision may have.   We can foresee a frustrated employee who has lost a claim of unlawful and unfair dismissal, after a lengthy hearing, trying again some years later on the pretext that no reference or a bad reference prevented him from obtaining a new job.   It seems to us, on the one hand, that if an employer has been guilty of giving a discriminatory reference [that is one influenced by sex or race, or because of a previous claim] or of not giving a reference at all for reasons which are discriminatory, then as a matter of policy it is right that the former employee should have a remedy.   On the other hand, tribunals must be reasonably alert to the possible misuse of this type of complaint.   There must be some basis for the assertion that the way the reference was dealt with was because of race or sex or because of the doing of a protected act.   We are quite content to leave this issue to the good sense of the industrial jury.

	The order is that the appeal is allowed and the matter remitted back to a freshly constituted Employment Tribunal.