MS D BULL v HARRODS LTD [1999] UKEAT 1426_98_0607

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [1999] UKEAT 1426_98_0607Case No Appeal No. EAT/1426/98Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MS D BULLAPPELLANTHARRODS LTDRESPONDENT
Before
His Honour Judge Peter Clark Mrs T A Marsland Mrs M E SunderlandDate 6 July 1999
[1]APPEARANCES For the Appellant MISS Y MILLAR (Representative) SWAAP Ground Floor 25 Horsell Road London N5 1XL For the Respondents MR R BAILEY (of Counsel) Instructed by: Ms C Denbow Harrods Ltd Legal Department 87/135 Brompton Road Knightsbridge London SW1 7XL JUDGE PETER CLARK : The appellant, Ms Bull, was employed by the respondent as a security officer from 10th June 1996 – 4th September 1997. Following termination of her employment she brought a complaint of unlawful sex discrimination and victimisation by an Originating Application presented to the Employment Tribunal on 20th October 1997 ["the original claim"].[2]A hearing of her complaint first took place before the London (South) Employment Tribunal on 8th-11th June 1998. The hearing was not then completed and was adjourned to 24th-25th November 1998. That hearing was again adjourned part heard until 1st March 1999.[3]On 5th November 1998 the appellant applied to the Employment Tribunal for leave to amend her Originating Application to add a further complaint of victimisation. The particulars of that allegation were:
"1. On the 26 September the Complainant states that she was followed by a white man in a K registration, 8 series Rover car which matches the description of a vehicle known to have been used to follow her whist in the employ of the Respondent. 2. A member of Harrods security staff telephoned the Complainant's current employer and divulged, inter alia, details of these proceedings, including details of without prejudice negotiations, in an apparent attempt to sour relations between her and her present employer. 3. It is the Complainant's contention that the above is an attempt by the Respondent to bring pressure to bear on her to discontinue her Employment Tribunal case."
[4]Both alleged incidents, said to have occurred in September 1998, post-dated the termination of her employment. She relied on the European Court of Justice ["ECJ"] decision in Coote v Granada Hospitality Ltd [1998] IRLR 656 , for the proposition that upon a proper construction of the Sex Discrimination Act 1975 ["SDA"], compatible with Community law, an act of victimisation post-termination was justiciable under the SDA.[5]By letter dated 10th November 1998 the tribunal Chairman refused the application on the grounds that the acts complained of post-dated the termination of employment and the Employment Tribunal had no jurisdiction to deal with that issue.[6]Against that refusal this appeal was brought by a Notice dated 1st December 1998.[7]The appeal having been listed for hearing on 16th February 1999 the respondent applied, by a faxed letter dated 14th January 1999, for an adjournment of this appeal pending determination by the EAT in the case of Coote , then due to be heard on 23rd March 1999. By letter dated 18th January 1999 the Registrar replied, stating that on the direction of the President, Morison J, this case should be remain in the list for hearing on 16th February 1999. The appeal came before us on that day and having received the submissions of the parties we reserved our judgment. It then seemed to the members of this division that it would be appropriate to await the decision in Coote .[8]Unfortunately the hearing in Coote fixed for 23rd March was vacated. It returned to the list before a division presided over by the President on 18th May. Judgment was delivered on the following day.[9]Accordingly I directed that the parties be invited to submit written representations on the effect of the EAT decision in Coote . Those having now been received we shall proceed to give our judgment in this case. Amendment[10]Originally, by paragraph (4)(ii) of their Answer, the respondent contended that irrespective of the Chairman's finding that the Employment Tribunal had no jurisdiction to consider the proposed amendment, because it raised matters which were not in existence at the time when the Originating Application was presented on 20th October 1997, the application was bound to fail. That point was expressly abandoned by Mr Bailey before us. Accordingly the sole question in this appeal relates to the jurisdiction issue. Post-termination victimisation[11]The relevant provisions of the SDA are as follows: By s.

(a) :

"A person discriminates against another person 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 … under this Act …" and by s.

(b) : "

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 … (b) by … subjecting her to any other detriment." By s. 82(1):
""employment" means employment under a contract of service …"
There are equivalent provisions to be found, respectively, in ss. 2(1)(a), 4(2)(c) and 78(1) of the Race Relations Act 1976 ["RRA"]. Discrimination under the RRA[12]In Adekeye v The Post Office (No. 2) [1997] IRLR 105 , the applicant sought to bring a complaint of unlawful racial discrimination under s. 1(1)(a) and 4(2)(c) of the RRA, in relation to an internal appeal hearing held by the Post Office following her dismissal from their employment.[13]Both the EAT and the Court of Appeal held that the applicant was not "a person employed by [the respondent]" within the meaning of s. 4(2)(c). The Act did not protect an applicant subjected to discrimination post-termination of employment. Victimisation under the SDA[14]In Coote the applicant was employed by Granada from December 1992 until September 1993. She brought a complaint of sex discrimination, alleging that she had been dismissed by reason of pregnancy. That claim was settled.[15]In July 1994 the applicant alleged that Granada has failed to provide her with a reference for a prospective employer and that that was an act of victimisation by reason of her previous complaint ["the protected act"]. She brought a second complaint, based on that allegation of victimisation.[16]A Chairman of Employment Tribunals held, on the hearing of a preliminary issue, that the tribunal had no jurisdiction to hear the complaint, basing himself on the Court of Appeal decision in Adekeye (No. 2) on the parallel wording under the RRA.[17]Against that ruling the applicant appealed to the EAT, which in turn referred two questions to the ECJ. Only the first question is material for present purposes. On that question the ECJ held that Article 6 of the Equal Treatment Directive (76/207) included protection for workers who had earlier brought proceedings under the Equal Treatment legislation against retaliatory measures by the employer taken after the employment relationship had ended.[18]When the matter returned to the EAT the first issue in the appeal was whether it is possible to construe s. 6(2) of the SDA to include claims by former employees.[19]This Court held that it would not be distorting the meaning of the SDA (cf. Duke v Reliance Systems Ltd [1988] ICR 339 , 352) to construe s. 6(2)(b) of the SDA in such a way as to give effect to the ECJ ruling on the meaning and effect of Article 6 of the Directive in the context of a post-termination victimisation claim. Two arguments advanced on behalf of the applicant were accepted by this Court. First, that it is possible to construe the words "a woman employed by him" in s. 6(2)(b) of the SDA (s. 4(2)(c) of the RRA) as capable of meaning a woman "who is employed" or "who has been employed" by him. Accordingly it possible to construe the SDA in a way which is conformity with the Directive in accordance with the ECJ ruling. Secondly, having considered the reasoning of the Court of Appeal in Adekeye (No. 2) , Morison P accepted the submissions that, having received the ECJ ruling following a reference, this Court was bound, as a matter of Community law, to apply that ruling notwithstanding an inconsistent decision by a higher domestic court. Rheinmühlen [1974] ECR 33 .[20]In these circumstances the appeal was allowed and the complaint referred to an Employment Tribunal for hearing on its merits. The Appeal[21]For the appellant, Ms Millar invites us to apply the ECJ ruling in Coote and to follow the EAT decision in that case to allow the appeal, declare that the Employment Tribunal has jurisdiction to entertain a complaint of post-termination victimisation, allow the amendment and remit the case to the Employment Tribunal for determination of the further claim on its merits.[22]For the respondent, Mr Bailey originally addressed to us an argument, relying principally on Adekeye (No. 2) for the proposition that the material words of s. 6(2)(b) cannot, without distortion, bear the meaning contended for by the appellant, namely that the expression "a woman employed by him" can include a former employee. As to the EAT decision in Coote , he invites us not to follow the reasoning in that case, but to adopt the construction in Adekeye (No. 2) .[23]We prefer to follow the President's construction in Coote . It seems to us that the expression contained in s. 6(2)(b) is capable of including a person who has been employed by the employer without distorting the language of the Act. In these circumstances we feel able to give effect to the statute in a way which is consistent with Community law, as explained by the ECJ. Conclusion[24]In these circumstances we shall allow the appeal and ourselves grant leave to the appellant to amend her original complaint to add the further claim of victimisation set out in the letter of 5th November 1998.[25]We shall direct that the matter be remitted to the same Employment Tribunal which heard the original complaint, on the ground that had the amendment been allowed by the Chairman, as we hold it ought to have been, the further complaint would have been heard and determined with the original complaint. There is a further practical consideration that the original tribunal has heard the evidence in relation to the original complaint. It will be well placed to determine, among other things, whether the protected act relied on by the appellant was done in good faith for the purposes of s 4(2) of the SDA.[26]On remission it will be for the Employment Tribunal to determine the good faith point if it is in issue, and whether the acts alleged to have occurred post-termination have been proven by the appellant and if so, whether in so doing the respondent treated the appellant less favourably than a person who had not done the protected act relied on by the appellant by reason that the appellant had done that protected act. Guidance on the proper test for establishing victimisation is, we understand, to be given by the House of Lords in the case of Nagarajan v London Regional Transport .