METROPOLITAN POLICE SERVICE v MR C SHOEBRIDGE [2004] UKEAT 0234_03_0806

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2004] UKEAT 0234_03_0806Case No Appeal No. UKEAT/0234/03Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
METROPOLITAN POLICE SERVICEAPPELLANTMR C SHOEBRIDGERESPONDENT
Before
Mr Justice BurtonDate 8 June 2004
[1]APPEARANCES For the Appellant MR P THORNTON (of Counsel) Instructed by: Metropolitan Police Services Directorate of Legal Services New Scotland Yard Broadway London SW1H OBG For the Respondent THE RESPONDENT IN PERSON SUMMARY Working through of HL decision in Relaxion . ET was right to accept jurisdiction in respect of claim of post-employment victimisation relating to alleged statements made, 14 months after employment terminated, by ex-employer to new employer. THE HONOURABLE MR JUSTICE BURTON (PRESIDENT) This has been the hearing of an appeal by the Commissioner of Police of the Metropolis ("the Respondent") from a Decision of the Employment Tribunal at London Central, given on 13 November 2002, when that Tribunal unanimously concluded that it had jurisdiction to hear the Applicant's claim of victimisation. The Tribunal also decided that it was just and equitable to extend the time limit, and there has been no appeal against that Decision.[2]The appeal by the Respondent has been based upon the very careful analysis, which has been carried out by Mr Thornton of Counsel, of the speeches in the House of Lords delivered, subsequent to the first instance Decision of the Tribunal in this case, in the clutch of 'post employment discrimination' cases which have become known as "the Relaxion cases", reported now as Rhys-Harper -v- Relaxion Group Plc and Other Cases [2000] ICR 867 . Separate speeches were delivered by the five Law Lords, Lord Nicholls, Lord Hope, Lord Hobhouse, Lord Scott and Lord Rodger, in dealing with six conjoined cases.[3]Mr Thornton has argued the matter very ably before us, both in writing and orally. Mr Shoebridge has at all material times represented himself; he plainly did so ably below, and has done so extremely ably and helpfully in his written submissions, which we have taken fully into account. We have not felt it necessary to call upon him orally before us today. We pay tribute to the researches and to the analyses and arguments both of Mr Thornton, from whom one would expect such ability, and of Mr Shoebridge, from whom one can only welcome the professionalism with which he has performed.[4]The facts must be taken to be assumed in Mr Shoebridge's favour, because this is a jurisdictional challenge, and it goes without saying that they are not accepted by the Respondent and will no doubt be the subject of considerable dispute at any further hearing before an Employment Tribunal. The claim is one of victimisation under the Sex Discrimination Act 1975 ("the SDA ") and, as we have indicated implicitly, by reference to the Relaxion decisions, it is of victimisation said to have occurred subsequent to the termination of Mr Shoebridge's employment by the Respondent, in fact fourteen months after such termination. This could be described in general terms, by reference to the kind of cases that were being considered in Relaxion itself, as a 'reference' case, but it is important from the point of view of Mr Thornton's argument to emphasise, as he does, the very considerable distinction between the facts here and what might be called the ordinary 'reference' case.[5]The facts alleged by Mr Shoebridge, which, as we have indicated, must be taken to be accepted for this purpose, are that, some fourteen months after the termination of his employment by the Respondent in October 2001, he alleges that he was then providing services to Sky Television, Sky News TV, when his engagement by Sky News Television suddenly ceased, and he appreciated, according to him, only subsequently, namely in April 2002, that this, on his case, had resulted from something said or done by the Respondent. This did not arise, therefore, on his case, out of a request for a reference, either by him to his previous employers or resulting from any approach for a reference by Sky News Television direct to the Respondent. It is said to have arisen out of an unsolicited statement or statements by the previous employer, the Respondent, in circumstances as yet undisclosed or uncanvassed, to Sky News Television.[6]If this be right, one has to assume that whatever was said was to his detriment, and he alleges that it arose out of, and was sufficiently connected with, the fact that he had made claims against his previous employer during his employment alleging sex discrimination. We do not need to go into the facts of the case, but there is no doubt that there were claims by him which he made against the Respondent, successfully, during his employment, and he alleges that the alleged subsequent statements made by the Respondent to Sky News Television, which led to his loss of that engagement, were because of the fact that he had made such claims and were such as to amount to a sufficient claim for victimisation, if established. There are, of course, always causative problems in establishing a case of victimisation; by virtue of section 4(2) of the SDA, victimisation arises if the discriminator 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 brought discrimination proceedings, or made claims of discrimination.[7]If and when the matter comes to be dealt with substantively by an employment tribunal, of course, the Applicant will need to establish not only that there were such statements made as he now alleges, but that the statements were made by reason of the fact that he had brought those discrimination claims. If, of course, any pejorative words, proved to have been spoken by anyone connection with the Respondent for whom the Respondent is liable, were made for some other reason, good or bad, then victimisation would not, in any event, be proved. But, of course, before he can surmount the hurdle of establishing victimisation, which is already a difficult task to fulfil, he must surmount the jurisdictional problem that, at the time of the alleged of victimisation by or on behalf of the ex-employer, he was no longer employed. Prior to the decisions in the Relaxion series of cases, as ultimately settled in the House of Lords, it would or may have been a complete answer that he was no longer employed by the employer at the time of the alleged acts complained of.[8]The first movement towards extending liability in this regard came by reference to the case of Coote , which began in this country and subsequently became the subject of decision by the European Court of Justice in Coote -v- Granada Hospitality Ltd ECJ 22 September 1998, [1998] ECR 1 - 5199 . That was a case where it was alleged by Mrs Coote that there was a failure to provide a reference to her by her ex-employer, and that that was done deliberately, as a result of, and as part of a way of getting back at her for, claiming discrimination, and she alleged that that amounted to victimisation.[9]The matter was referred to the European Court of Justice, in circumstances described in paragraph 15 of the judgment of the Court as follows:
"The Employment Appeal Tribunal is, however, uncertain whether, having regard to the Directive" and that is a reference to the Council Directive 76/207/EEC 9 February 1976 - "
The Sex Discrimination Act 1975, unlike the Race Relations Act 1976" - at that stage it was only being argued that the 1975 Act should be so construed, whereas as a result of Relaxion , as will appear, it is now common ground that all three discrimination Acts should be similarly construed - "ought not to be interpreted as prohibiting not only retaliatory measures which take the form of detrimental conduct during the employment relationship but also those which are decided on or whose harmful effects are produced after the employment has ended."[10]The conclusions of the European Court are set out in paragraphs 24 and following:
"24 The principle of effective judicial control laid down In Article 6 of the Directive would be deprived of an essential part of its effectiveness if the protection which 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. 25 In those circumstances, it is not possible to accept the United Kingdom Government's argument that measures taken by an employer against an employee as a reaction to legal proceedings brought to enforce compliance with the principle of equal treatment do not fall within the scope of the Directive If they are taken after the employment relationship has ended. … 27 However. contrary to [the United Kingdom] Government's submissions, having regard to the objective of the Directive, which is to arrive at real equality of opportunity for men and women …… and to the fundamental nature of the right to effective judicial protection, It is not. in the absence of a clear indication to the contrary, to be inferred from Article 7 of the Directive that the legislature's intention was to limit the protection of workers against retaliatory measures decided on by the employer solely to cases of dismissal, which, although an exceptionally serious measure, is not the only measure which may effective deter a worker from making use of the of the right to judicial protection. Such deterrent measures include inter alia those which, as in the present case, are taken as a reaction to proceedings brought against an employer and are intended to obstruct the dismissed employee's attempts to find new employment. 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 as a reaction to legal proceedings brought to enforce compliance with the principle of equal treatment within the meaning of the Directive."
That last paragraph is in essence repeated as the summation of the European Court's conclusion. Subsequent to that decision, the matter was referred back to the Employment Appeal Tribunal and, in the judgment of Morison P, at 1999 IRLR 452, the decision of the European Court was effectively activated, by a conclusion in that case that the claimant was entitled to make a victimisation complaint in relation to events that had occurred after the termination of the employment contract.[11]The facts in that case related, as we have indicated, to the refusal of a reference, and three of the conjoined cases in the House of Lords in Relaxion - as it happens all of them falling under the Disability Discrimination Act rather than race or sex discrimination legislation, but it was, as we have indicated, by the time of the House of Lords judgment, not seriously contended otherwise than, and, in any event, their Lordships found, that all three Acts should be interpreted on the same basis - related either to the alleged provision of discriminatory references or their alleged non-provision.[12]So far as the timescale is concerned, Mr Shoebridge has very helpfully set out in his Skeleton the timescale involved in three of those six cases, and shown that they all related to acts later in time after termination of employment than the fourteen months in this case. In the case of Nicholas Kirker -v- British Sugar Plc there was a passage of twenty nine months between termination of employment in March 1997 and the act complained of in August 1999. In Jones -v- 3 M Healthcare , which is not a reference case but a case relating to the alleged refusal by employers to return business cards the property of the applicant, which the employers retained, the gap or passage of time was twenty two months between termination of employment in November 1997 and the act complained of in September 1999, and in Angel -v- New Possibilities NHS Trust , again a reference case, the period was eighteen months, after July 1998, before the act complained of in January 2000.[13]Mr Shoebridge has sought to submit before us that there is, or ought to be, in the light of the words which we have read in Coote in the European Court of Justice, a specific emphasis on the fact that this is a victimisation claim, and he draws comfort from the words of Lord Hobhouse in Relaxion in that regard at paragraph 148. But it does not appear to us that it is necessary to our decision to say that there is any difference between victimisation and any other form of discrimination. It simply seems that alleged post-employment discriminatory acts are more likely to be alleged to be victimisation than anything else because, particularly, as in a case of this kind, when it is suggested that there was a deliberate act by the employer, it is more likely - although of course, as Mr Thornton rightly points out, motive will not be relevant to jurisdiction - that such acts would occur if they are motivated and the most likely continuing motivation would be victimisation, rather than what one might call 'ordinary' discrimination.[14]There is no doubt that the facts of this case, as we have indicated and as Mr Thornton has submitted, do not constitute the normal case of provision, or non-provision, of references. One can, as we have canvassed in the course of argument with Mr Thornton, foresee various possibilities in which allegedly discriminatory or victimisatory conduct can occur, so far as concerns the act of a former employer, relating to his or its former employee.[15]The first such example is expressly dealt with in some of the cases in Relaxion , namely either the alleged discriminatory provision of a reference either orally or in writing to the employee, or the allegedly discriminatory failure to provided a reference when requested by an employee. That scenario would plainly fall within the decision of their Lordships' House that liability did arise in such as a case, by reference to the cases actually before them.[16]The second situation, not very different from the first, is where the employee is not directly involved at all, but the fresh would-be employer makes an approach to the former employer for a reference, oral or written, or at any rate for words of recommendation. or the contrary, about someone who either has just. or has just started, or is about to start, in the new employer's employment. That would be thus a reference not requested by the employee, but one, no doubt, arising out of the fact that the employee would, in his CV, or otherwise, have told the new employer that he had previously been employed by the former employer at some stage in his employment history. As will become apparent when we deal shortly with the contents of the speeches of their Lordships, there is little distinction, if any, between the expectation of an employee that if his employer or ex-employer is asked by him for a reference, he will provide one, and an expectation that if such an employer is subsequently approached by a different employer, or would-be employer, an answer will be given in response to that approach.[17]The third situation is, or may be, what occurred in this case. It is characterised by Mr Thornton as unsolicited, but that may or may not be the case. The assertion by the Applicant, in this case, which must, in its broadest sense, be taken to be correct until and unless it is tested at a full Tribunal, is in paragraph 20 of the Originating Application:
"20 On 26 April 2002, the Applicant learned that the reason Sky News was no longer able publicly to employ him was that the Metropolitan Police, the Respondent, had asked, or strongly suggested, that they should not do so. When the Applicant expressed surprise, and doubt that in a democracy an independent news organisation could be so influenced by an outside body, especially the police, he was told that Sky could not afford to jeopardise the Respondent's goodwill ……"
Mr Thornton, and it may well be that he is right, reads from that that this was, - if it occurred at all, of course, which is not accepted - a wholly unsolicited approach by the ex-employer, the Metropolitan Police, to Sky News who, in some circumstance or other, the Respondent would have discovered, now engaged the services of its ex-employee. But, of course, we are not simply dealing here with this question of jurisdiction by reference to the precise facts of this case, not least because the precise facts of this case are not yet clear.[18]There may well be a very broad spectrum of circumstances, in which what could in general terms be called an unsolicited reference or statement about an ex-employee, could arise, and there may be considerable doubt about whether it can in fact be described as unsolicited. Of course there may be a deliberate step taken by the ex-employer to seek out who the new employer is, and to make such a statement. Or there may be a situation in which the ex-employer fortuitously finds out who the new employer is, and, although he did not seek him out, nevertheless, having found out, then takes steps to apprise the new employer of that which the ex-employer wishes to say about the ex-employee. It may, on the other hand, be that a representative of the ex-employer and a representative of the present employer may meet fortuitously, at some business conference or otherwise, and discover that the ex-employee is now engaged or employed by the new employer, and that, in such a situation, either the ex-employer volunteers information or the employer requests information, or the information simply emerges in the course of conversation.[19]In all such scenarii there is a difference from the formal request for a reference, but the effect is the same, namely that the employer is providing information about someone who is an ex-employee in circumstances in which the new employer is bound to be influenced by what is said. It is unclear, as we have indicated, which side of the line, if there is a line, the present facts are going to fall, once analysed. It is equally unclear whether, on the facts of this case, it will be established that the disclosure that was made by the Respondent, if it was made, was deliberately in order to lose the Applicant his job with Sky News; or whether it was simply that the disclosure was made in circumstances in which it was inevitably likely, although not positively intended, that that would be the effect. All that would have to be assessed by a Tribunal if there is jurisdiction for the matter to be decided. But the fundamental issue before us today is whether there is jurisdiction. Once there is, of if there is, jurisdiction, whether any of the distinctions which we have drawn matter at all would be a matter entirely for an Employment Tribunal, as guided no doubt by this judgment.[20]It is against that background that we turn to Relaxion , which Mr Thornton submits, on analysis, prevents entirely the hearing of this claim because, although the House of Lords in Relaxion , following on from the European Court in Coote , did allow ex-employees to bring claims for discrimination under all three Acts, including victimisation, it is plain from the House of Lords decision that there was not open house for ex-employees to be able to sue. On any basis it is required that the facts in question fit one or more of the tests that were laid down by the House of Lords, by what was a purposive construction of the various Acts, but plainly they did not allow open house, as we have described it, or a massive new exposure of ex-employers to liability; and Mr Thornton has sought to derive from the House of Lords judgment some stopping point, short of the facts of this case, but by reference, as he must, to the facts of the cases which were before them.[21]There was only one case which all five of their Lordships concluded did not qualify for the extension of jurisdiction which the House of Lords otherwise made available to the other applicants, and that was the claim in Mr D'Souza -v-Lambeth London Borough Council, of alleged discriminatory refusal to comply with an order for reinstatement, and all their Lordships, for various reasons, put that beyond the ambit of the Act. In relation to the other five cases, four of their Lordships were agreed that there should be jurisdiction in all of them, and Lord Scott agreed in relation to two.[22]So far as the Relaxion claim itself is concerned, that related to alleged discrimination in the course of an appeal against dismissal. It plainly falls into a different category. As for the others, we have already summarised to what they related, and insofar as three of the cases were reference cases, in which the case was allowed to proceed, Mr Thornton has had to accept that if this were (contrary to his submissions) a case in which a discriminatory, or victimisatory, reference, or failure to provide a reference, was being complained of, then there would be no total jurisdictional bar.[23]As will become apparent, it became clear, at any rate to three of their Lordships, Lord Nicholls (at paragraphs 41 and 42 of his speech), Lord Hope (at paragraphs 127 and 128), and Lord Rodger (at paragraph 212), that there was a real problem for employers, if what might be called "long-tail liability" in respect of references were to arise. It is quite plain from those three passages, if no others, in the speeches of their Lordships, that there cannot be any limitation on the basis of discrimination or victimisation only being available in respect of a first reference for a first employer immediately after employment; but that, subject always to argument on the particular facts of a case, it is inevitable, in our judgment, that the consequence of the House of Lords judgment would be that a complaint of discriminatory or victimisatory conduct, in relation to the giving or refusal of a reference, would lie, at any rate prima facie , against employers for years to come, and not simply in respect of the immediate aftermath of an employment. So that is not of itself a distinction upon which Mr Thornton could rest, namely by reference to the fact that the Applicant had done work for the BBC and foreign media during the period between the termination of his employment with the Respondent, and the act complained of, when addressing an alleged statement said to have led to the termination of his engagement with Sky News.[24]But it is the difference between an alleged case of an unsolicited, if that what it was, derogatory or discriminatory statement, and the provision of a reference, upon which Mr Thornton hangs his hat. He does not submit that it is all a question of fact, because, of course, he accepts if that were so, the matter would have to go to an Employment Tribunal. His submission is that it must be a matter of jurisdiction, and his two bases for saying that the matter is jurisdiction can be categorised as follows:-(1) On the basis, as he submits, of an analysis of the judgments of their Lordships, no claim for discrimination can arise after the termination of the employment relationship between the parties; that is not the employment contract , but the employment relationship which he accepts will continue in the light of their Lordships' decision after the termination of the contract itself; and he submits that in this case, fourteen months after termination of the employment contract in question, the employment relationship had come to an end.(2) Whereas, on the basis of Lord Nicholls' speech in paragraph 36:- "an employee continues to enjoy, although not as a matter of contractual entitlement …. 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" - he submits that such non-contractual entitlement does not arise in respect of the mere fact of an ex-employer's having unsolicited contact with a subsequent employer.[25]Against that background, we turn to the speeches of their Lordships. We hope we are not being too simplistic in analysing their Lordships' speeches very shortly in this way:- (1) Lord Scott, as we have indicated, was largely, although not wholly, dissenting in relation to the outcome of the cases. The reason why, as it seems to us, he differed from the rest of their Lordships, will be apparent from the explanation we shortly give of what we understand to have been his reasoning. Lord Scott concluded that whereas liability for discrimination did not cease with the termination of the employment contract, but that it continued while the employment relationship continued, nevertheless, the employment relationship only continued for a short but reasonable time after the termination of the employment contract; and that there could be no liability, once the employment relationship came to an end. The last paragraph of his speech is quite clear:
"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."
As we have indicated, he differed from the rest of their Lordships in the light of that, with regard to his conclusions. So far as the Jones case, for example, is concerned, he concluded that a reasonable time for him to remove his belongings or request their return had expired long before the date of the alleged discriminatory conduct. Thus, although he extended the liability period to the end of the period of employment relationship, rather than the termination of the contract, that relationship was, in his view, one which only continued for a shortish period, after the termination of the employment contract. (2) Lord Hope tied the liability for discrimination to the continuation of the employment relationship, but he did not put any timescale on the continuation of the employment relationship, and he was satisfied that, in relation to all the cases before him, the liability for discrimination continued. At paragraph 114 he said as follows:
"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."
He concluded at paragraph 116 that the approach of the Court of Appeal in the case which their Lordships were overruling of Post Office -v- Adekeye [1997] ICR 110, "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". (3) Lord Nicholls, in our judgment, did not restrict liability for discrimination to what might ordinarily have been called, at any rate by Lord Scott and Lord Hope, the continuation of the employment relationship. Lord Nicholls described, in the paragraph from which we have already quoted, paragraph 36, what he called 'benefits' or 'incidents' of the employment relationship, and we shall read the relevant paragraphs: "36…….. 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-a-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."
Then, after canvassing matters relating to long-tail liability, to which we will return, he says this at paragraph 44:
"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 former employees."
Mr Thornton submits that what Lord Nicholls is there laying down is the same as what Lord Hope laid down in his speech. We disagree. It is plain that Lord Nicholls postulates liability that may continue after the end of the employment relationship, in any real sense, but relating to 'incidents' of that employment relationship. Such, for example, as the request by the Applicant in Jones , years after the termination of the contract and clearly of the employment relationship in any real sense, to have his property returned to him, being a 'benefit' which he was entitled to expect would be provided post-employment. That this is clear is apparent from the passages to which we referred earlier, which deal with Lord Nicholls' attempt to reduce the risk to employers of the long-tail liability which, it is quite apparent he recognises, results from such a conclusion. After setting out, in paragraph 40, his recognition that a line has to be drawn somewhere between what is prohibited and what is not, on the one hand, but the pioneering character of the anti-discrimination legislation on the other, he said as follows, in 41:
"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 to former employees, for example, after a lapse of a certain time, then refusal of a reference after that time cannot give rise to a well founded discrimination claim."
It is apparent from those paragraphs therefore that, subject always to Mr Thornton's point that there is a substantive difference between the facts in this case and the ordinary reference case, Lord Nicholls is there assuming, indeed asserting, the continuation of liability, long after the termination of the employment relationship, in relation to acts which are 'incidents' of or 'benefits' arising in respect of, the employment relationship, which is, in our judgment, plainly wider than the view of Lord Hope, with which the dissenting Lord Scott agreed. (4) Lord Hobhouse, as Mr Thornton accepts, does not refer to the question of the continuation of the employment relationship at all. The nub of his speech is set out in paragraph 139, as follows, and he begins by referring to the words of section 6(2) of the SDA , to which we will return. "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." In paragraph 140 he refers to the construction which he prefers, namely based upon "a factual connection with the employment which it should be easier for the lay employer to understand" and to a "substantive and proximate connection between the conduct complained of and [his or] her employment by the alleged discriminator." And in section 141 he refers to assessing whether the "requisite connection" exists. (5) Lord Rodger deals with the matter, so far as his test is concerned, very shortly in paragraph 215, once again without referring at all to any question of continuation of the employment relationship, and he said as follows:
"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."
[26]All their Lordships were, for the purposes of the SDA, thus construing, both purposively and, no doubt, in order to comply with the European Court decision in Coote , the words of section 6(2) of that Act, which we shall recite:
"(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."
The purposive construction that was adopted was to include implicitly, after the words "employed by him" the words "or formerly employed by him", or more simply, interpreting the words "employed by him" as including the concept of "formerly employed by him" in the sense that the employee, after employment, still could be described as someone who, using the pluperfect, had been employed by the employer, but, there being no pluperfect participle, the word was to cover such a situation as well.[27]By virtue of that purposive construction of the main clause of sub-section 6(2) it is, in our judgment, inevitable that the words "subjecting her to any other detriment" must similarly be broadly construed, because the picture is now to be wider than the employment itself, and there may well be detriment which occurs post-employment, which brings the employer within the provisions of section 6(2) on the Relaxion principle, which will be, inevitably, different from the kind of detriment which is alleged to have occurred during employment. The giving of references is just such an example. It is common ground that all their Lordships, even including Lord Scott, who dissented on the facts in this regard, because of his limitation of the employment relationship period, allowed for the giving of a discriminatory reference, or the refusing of a reference, as being a detriment, and yet that is not a detriment which would be likely to arise during employment. Of course, it might occur towards the end of an employment, if an employee is leaving and wants a reference just before he leaves, but it is much more usual for a reference to be sought after employment.[28]Mr Shoebridge, in his able way, sought to say that there could be a similar situation during employment in relation to the facts of his case. He was not tied exclusively to the services of the Respondent during his employment by them, and he postulates the hypothetical possibility that he had asked for a reference from the Respondent during his employment, for the purposes of permitted parallel employment. But it appears to us that the provision of such a reference would not be the kind of entitlement, even including non-contractual entitlement, which an employee could necessarily expect, or the non-provision of which could lead necessarily to an argument of discrimination, and Mr Shoebridge's diligence in this regard was, in our judgment, unnecessary. To use the Latin, as we are still permitted to do in this Court, in our judgment, the eiusdem generis rule does not apply to section 6(2), once it is construed purposively in accordance with the European approach, and, indeed in particular the decision of Coote in the European Court; and the passage from Lord Nicholls's judgment, which we have read, in paragraphs 36 and 37 appear to us to emphasise this, quite apart from the actual decision of their Lordships in relation to references. We take the view that once Relaxion justifies the extension of section 6(2) to post-employment situations, the words "any other detriment " would similarly be extended to cover the kind of detriment which can occur post- employment, whether or not it is a similar kind of detriment to that which would have occurred during the employment.[29]We must mention two arguments which, inevitably and rightly, Mr Thornton put forward in this regard. The first is the same argument as that which he puts forward to seek to persuade us that Lord Nicholls in fact is more restrictive than he appears to us to be in accordance with our summary above, and we shall defer dealing with that argument for a moment until we deal with the overall nature of his contention. But his second argument is, by reference to the very paragraph (139) of Lord Hobhouse's judgment which is so central to the conclusion of Lord Hobhouse, and to which we have referred. Lord Hobhouse, in that paragraph, refers to the need, as Mr Thornton would submit, to consider whether there is a sufficient similarity with the other conduct falling within section 6(2).[30]We are satisfied, and indeed, in the end, Mr Thornton did not really submit the contrary, that Lord Hobhouse was not suggesting that it was a jurisdictional bar if the conduct complained of was different from the kind of discriminatory conduct which could be complained of during employment. Lord Hobhouse was rather indicating that one of the questions to be considered in arriving at an answer, one way or the other, on "proximity" as he put it, or "sufficiently close connection", would be if the conduct was substantially different from conduct which could arise during employment; because, depending upon the facts, that might mean that the conduct complained of, by an ex-employer, which might be of a wholly different character, not arising, as Lord Rodger would describe it "qua former employer", would thus be too remote, or not sufficiently proximate.[31]We turn then to the nub of Mr Thornton's submission. We referred to the fact that his submissions required the close analysis of the speeches of their Lordships, and we have set out our judgment as to what those speeches constituted. Why that is important is because of the law of precedent. Because each speech of their Lordships was in this case different, and dwelt at length with the individual reasoning of their Lordships and the facts of each of the cases, analysis of the House of Lords decision is of course much more difficult than if one speech is delivered, with which all the rest of their Lordships agree, shortly or otherwise. If the position were that a majority of their Lordships' House required that the employment relationship continued at the time of the alleged act of discrimination, then we would be bound by that decision, and, submits Mr Thornton, it would be apparent that what occurred here with the unsolicited statement made by an ex-employer, would not have occurred during the continuation of the employment relationship.[32]If, on the other hand, the majority decision of the House of Lords was that an actionable act of discrimination or victimisation could occur after the termination of the employment relationship, then we would be bound to the contrary. This mathematical exercise depends upon what one might call the swing speech of Lord Nicholls, because it is apparent from our summary that Lord Hope and Lord Scott did require the continuation of the employment relationship, Lord Scott, albeit dissenting, the more restrictively, and that Lord Hobhouse and Lord Rodger do not. The passage in Lord Nicholls' judgment, which of course is central, and which we have already read, is that in paragraphs 36, 37, 44 and 45, but as exemplified by his discussion of long tail liability in 41 and 42.[33]Mr Thornton's submissions are twofold.(1) that on analysis of that passage, Lord Nicholls was requiring the continuation of the employment relationship;(2) that the kind of matters here complained of did not fall within his analysis of an incident or a benefit arising out of the contract of employment or the employment relationship. It is plain that what Lord Nicholls describes as a benefit, or an expectation of benefit, by the employee must comprehend, so far as the right to complain about it is concerned, conduct which does not amount to a benefit, indeed to the reverse of a benefit, such as the giving of a bad or a discriminatory reference, or a discriminatory failure to supply a reference. Those can be described in broad terms as negative benefits, or expected benefits which did not accrue as they were hoped.[34]It is clear to us, if one is looking, with Lord Nicholls, at examples of the kind of non-contractual expectation which an employee will have, that this is not limited simply to an expectation that a requested reference will assist him in obtaining a new job, which was the example by Lord Nicholls in paragraph 36. It is the combined experience of this Tribunal that that is not the sole occasion when an employee's expectation will arise. An employee will have a similar expectation of assistance, at any rate of non-discriminatory conduct on the part of an employer, whenever there may be contact or communication with a subsequent employer or would-be employer, in relation to the performance or conduct of the ex-employee; and there is in our judgment no qualitative difference between the act of an employer in spoiling a subsequent employment on an unsolicited basis and the act of an employer in giving or refusing a formal reference. Of course, on the facts, as we have indicated, victimisation may not arise or proximity may not arise, as we shall discuss in a moment, but we see no distinction by way of applying the facts of this case to the examples given by Lord Nicholls between his analysis of incidents of an employment relationship and what occurred here.[35]Secondly, we are entirely satisfied that Lord Nicholls was looking at incidents of an employment relationship, as he describes them in paragraphs 36, 37, 44 and not necessarily the continuation of the employment relationship as a whole. When he said in paragraph 44 "the obligation not to discriminate applies to all the incidents of the employment relationship, whenever precisely they arise" he was referring to the kind of incidents of such a relationship such as the discriminatory non-provision of a reference, or, as here, if proved, possibly discriminatory statements made about an ex-employee in an employment context, and certainly those with a view to spoiling the subsequent employment of the employee, if such be found; both could be incidents of an employment relationship and they could, as indeed Lord Nicholls himself foresees in paragraphs 41 and 42, arise years after the employment relationship itself had ended. In those circumstances, we are satisfied that Lord Nicholls stands on the side of the line together with Lord Rodger and Lord Hobhouse, and that the facts alleged here, if proved, would amount to discriminatory conduct of an incident of employment relationship.[36]On the other hand, a much simpler test is set out, in our judgment, and one which the Employment Tribunal may well find it far easier to adopt, applying the commonsense of an industrial jury, namely the tests set out by Lord Hobhouse and Lord Rodger: whether there is a substantial connection with the employment relationship, or a sufficiently close connection with the employment, or whether the employer was here discriminating qua employer, or whether the facts alleged are sufficiently proximate to, or not remote from, the employment of the employment relationship. We are satisfied that that is a matter which this Employment Tribunal can resolve and might resolve against the Applicant; that is a matter for the Employment Tribunal when it fully hears the facts. But it appears to us that if it be proved that an employer deliberately set out to spoil a subsequent employment, however long after its own employment had ceased, or so acted, knowing of the likely consequences of its actions, it would be acting qua former employer , to quote Lord Rodgers' words. That is not to say, of course, that it would necessarily be victimising, because it may have other motivations for its act, but that if such were proved, there would be, in our judgment, sufficient proximity and a sufficiently close connection with the employment.[37]Clearly correctly, Mr Thornton submitted that the subsequent amendment of the legislation, which has been carried out in order to bring United Kingdom legislation in line with the decision of Coote , cannot have been intended to give less protection than the 1975 Act, unamended, as interpreted now by this Court, and certainly as interpreted by the House of Lords in Relaxion . Consequently, he has caused us to look at the new proposed section 20A of the Act, which reads as follows, under the rubric "Relationships which have come to an end" "(1) This section applies where -(a) there has been a relevant relationship between a woman and another person ("the relevant person"), and(b) the relationship has come to an end (whether before or after the commencement of this section). (2) In this section, a "relevant relationship" is a relationship during the course of which an act of discrimination by one party to the relationship against the other party to it is unlawful under …… [relevant provisions] (3) It is unlawful for the relevant person to discriminate against the woman by subjecting her to a detriment where the discrimination arises out of and is closely connected to the relevant relationship." There are two matters to observe in respect of this provision, which has been introduced by virtue of the Sex Discrimination Act 1975 (Amendment Regulations 2003) to come into force on 19 July 2003, and, of course not strictly relevant to the facts of this case, but to be looked at for the reasons which we have described, at the instance of both Mr Thornton, and, indeed, Mr Shoebridge.[38]The first is that the whole intention is to govern relationships which have come to an end, and thus to include former employment relationships. It is thus plain that liability as a result of these regulations, on any basis, accrues after the termination of the employment relationship. That is exactly in accord with the construction, which we have found to be the correct one, of the majority decision of their Lordships in Relaxion . Had we not construed their Lordships in that way, then the House of Lords decision would have, in our judgment, offended against the decision of the European Court in Coote . We have read the relevant passage in Coote , and we repeat again the last paragraph of the judgment, which summarises the European Court's decision:
"Article 6 of Council Directive 76/207/EEC 9 February 1976 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 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 that Directive."
[39]Mr Thornton submits that that use of the word "employment relationship" by the European Court was, if not an error, certainly to be interpreted as simply referring to the employment contract, and not the employment relationship, and that all Coote should be seen to be doing is to emphasise that liability can continue after the termination of the employment contract, but it is, in our judgment, not open to us to conclude, or Mr Thornton to submit, that the employment relationship there means anything other than what it says, and to read into those words something that is not said. It is apparent that the House of Lords in the passages which we have already cited, and others, were appreciating that Coote was foreseeing the continuation of liability after the ending of an employment relationship and, indeed, in our judgment, it is for that reason that the majority of the House of Lords so concluded. Certainly there was nothing in section 20A which should cause us to reach any other conclusion than that which we have already reached.[40]The second point that Mr Thornton draws our attention specifically to, of course, is that in general terms he submits that if section 20A had been applicable at the time of the facts of this case, on his submission, there would not have been liability, and he says that if there would not have been liability under section 20A, a fortiori, there could not be any liability in respect of the unamended Act, because it is not to be expected that an amendment will positively narrow any liability there was under the unamended act, certainly not given that the amendment was passed in order to bring this country into line with the Coote decision. That, of course, must be right, but it has already, we suspect become apparent that it is our judgment that applying Lord Rodger and Lord Hobhouse's tests of sufficiently close connection, or substantive connection, or requisite connection, the facts of this case, if proved, would satisfy their tests, and if they would satisfy their tests, then they would, in our judgment satisfy the test of being "closely connected to the relevant relationship", if the new Act, indeed, had been in force.[41]In those circumstances, notwithstanding the diligent arguments of Mr Thornton, we are entirely satisfied that the application of the majority decision of the House of Lords to the facts of this case, if proved, as must be assumed before us, would bring the Applicant within the extended entitlement as a result of Relaxion , under section 6(2), to be able to complain of victimisatory treatment post-employment; and that, if proved, the facts may, and we say no more, establish a substantive, or sufficiently close, or requisite connection with the Applicant's employment by the Respondent, particularly if it be proved that the Respondent made this approach, or responded to some kind of implicit approach from Sky News, with the purpose of spoiling the subsequent engagement, or continuing engagement, of the Applicant, and/or that if proved, there would be in those circumstances proximity between the employment and the acts in question, within Lord Hobhouse's test.[42]In those circumstances, although obviously for quite different and fuller reasons that were given by the Employment Tribunal, which did not have available the House of Lords decision, we dismiss this appeal.