MR V M S BRUCE v ADDLESHAW BOOTH & CO [2004] UKEAT 0404_03_1102

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2004] UKEAT 0404_03_1102Case No Appeal No. UKEAT/0404/03Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR V M S BRUCEAPPELLANTADDLESHAW BOOTH & CORESPONDENT
Before
Mr Justice RimerDate 11 February 2004
[1]APPEARANCES For the Appellant THE APPELLANT WAS NEITHER PRESENT NOR REPRESENTED For the Respondent THE RESPONDENT WAS NEITHER PRESENT NOR REPRESENTED THE HONOURABLE MR JUSTICE RIMER This is an appeal by Mr V M S Bruce against a decision of an employment tribunal sitting at Manchester on 7 February 2003. The decision was that of the Chairman, Mr B J Doyle, sitting alone. He ordered that an originating application that Mr Bruce had presented on 7 October 2002 (case number 2408207/2000) should be struck out under rule 15(2)(c) of the Employment Tribunals Rules of Procedure, being the rules (" the 2001 Rules") contained in Schedule 1 to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2001 ("The Regulations"). Rule 15 provides, so far as material:
"15 Miscellaneous powers … (2) A tribunal may - … (c) subject to paragraph (3), at any stage of the proceedings, order to be struck out or amended any originating application or notice of appearance, or anything in such application or notice of appearance, on the grounds that it is scandalous, misconceived or vexatious; … (3) Before making an order under sub-paragraph (c) … of paragraph (2) the tribunal shall send notice to the party against whom it is proposed that the order should be made giving him an opportunity to show cause why the order should not be made; but this paragraph shall not be taken to require the tribunal to send such notice to that party if the party has been given an opportunity to show cause orally why the order should not be made."
[2]"Misconceived" in rule 15(2)(c) is defined in regulation 2(2) of the Regulations as including: "having no reasonable or prospect of success".[3]The Chairman's ruling was made on the application of the respondent to Mr Bruce's originating application, Addleshaw Booth & Co ("Addleshaw"), a firm of solicitors. Mr Bruce is disabled within the meaning of the Disability Discrimination Act 1995 ("the DDA") and has been a wheelchair user since childhood. In order to accommodate his difficulties in this respect the hearing before the Chairman was, with the agreement of both parties, conducted on the basis of written submissions. There is no question of Mr Bruce not having had proper notice of the strike-out application or of not having had a proper opportunity to respond to it. Somewhat unusually, the appeal before me has similarly been conducted on the basis of written submissions although I am delivering this judgment orally in open court. Directions to that end were given by His Honour Judge McMullen QC on the occasion of the preliminary hearing of Mr Bruce's appeal, paragraph 13 of Judge McMullen's order of 13 November 2003 reading:
"13) On [Mr Bruce's] application at the Preliminary Hearing for the appeal to be decided by written submissions, for the saving of costs, for convenience of the parties and to make a reasonable adjustment for Mr Bruce's disability (the Employment Tribunal decision having been made on written submissions), subject to any objection made by [Addleshaw] in writing within 7 days of the seal date of this Order, the application be granted and the following directions to apply."
Paragraph 16 of that order also gave liberty to both sides to apply on paper on notice to the other party to vary or discharge the order of 13 November. I understand that no objection to the written submissions directions was made by Addleshaw and I have had the benefit of full written submissions not just from Mr Bruce but also from Mr Nigel Grundy, counsel for Addleshaw. Mr Bruce's claim[4]Mr Bruce is a solicitor. By his originating application he complained of "discrimination by victimisation contrary to section 55 of [the DDA]". He set out the particulars of his claim in paragraph 5. He there alleged that he has been unable to walk since childhood, is a wheelchair user and is a disabled person within the meaning of the DDA. He alleged that he had previously taken employment tribunal proceedings against Addleshaw and others and had, in good faith, made allegations against them that they had discriminated against him contrary to, the DDA. He then alleged that Addleshaw had subjected him to victimisation within section 55 of the DDA:
"… in that they have treated me less favourably than they have treated other people whose circumstances are the same as mine, that is people who have applied for employment with them, and who are not disabled. Such people would not have made claims against them under [the DDA] and therefore [Addleshaw] would not have subjected them to the same distressing treatment"
[5]In paragraph 5.1.5 Mr Bruce detailed the less favourable treatment he was complaining of, namely(1) writing to third parties and other solicitors to seek information about other claims he had made "with a view to instigating vexatious litigant proceedings against me and/or to making costs applications against me and/or assisting other solicitors or third parties to make such applications;(2) "Writing to the Attorney General to ask him to institute vexatious litigant proceedings against me";(3) "putting about" that "I am 'trouble' by engaging in this liaison and therefore to cause me to be subjected to detriment or detriments by other potential employers and third parties."[6]Mr Bruce then alleged, in paragraph 5.1.6, that:
"5.1.6 But for my disability and the fact that I have pursued employment opportunities and subsequently taken claims under the [DDA] I would not have suffered this treatment. [Addleshaw] has afforded me this treatment only because I have taken Employment Tribunal proceedings against them and other potential employers. [Addleshaw] has pursued this course of action to discredit me and victimise me for pursuing claims that were lawfully instigated by me under the [DDA] against other respondents."
Mr Bruce then alleged that Addleshaw's treatment has caused him anxiety, distress and unhappiness.[7]Addleshaw outlined its grounds of resistance to Mr Bruce's claim in its IT3. It admitted that he is a disabled person for the purposes of the DDA. It alleged that he had brought proceedings claiming disability discrimination against it on three previous occasions, with the first two sets of proceedings being withdrawn by Mr Bruce and the third set being still outstanding. It admitted that it had taken steps with a view to the institution of an application for a restraint of proceedings order against Mr Bruce under section 33 of the Employment Tribunals Act 1996. It alleged that Mr Bruce had issued at least 66 employment tribunal claims since August 1995 against various respondents, and alleged that there were therefore reasonable grounds for its pursuit of a section 33 application. On 3 March 2001, Mr Bruce served a reply to Addleshaw's IT3. The legislation[8]Part I of the DDA, headed "Disability", comprises sections 1 to 3 inclusive. Section 1 defines "disability" and "disabled person". Section 2 contains provisions relating to past disabilities. Section 3 is headed "Guidance" and is in the nature of a provision ancillary to section 1 and does not, I consider, contain material of relevance to the issue before the employment tribunal and now before me.[9]Part II of the DDA, headed "Employment", comprises sections 4 to 18 inclusive. Sections 4 to 7 inclusive are sub-headed "Discrimination by employers". Sections 4 and 5 are of direct relevance and I must set up them out in full. They read: 4. Discrimination against applicants and employers(1) It is unlawful for an employer to discriminate against a disabled person - (a) in the arrangements which he makes for the purpose of determining to whom he should offer employment; (b) in the terms on which he offers that person employment; or (c) by refusing to offer, or deliberately not offering, him employment.(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.(3) Subsection (2) does not apply to benefits of any description if the employer is concerned with the provision (whether or not for payment) of benefits of that description to the public, or to a section of the public which includes the employee in question, unless- (a) that provision differs in a material respect from the provision of the benefits by the employer to his employees; or (b) the provision of the benefits to the employee in question is regulated by his contract of employment; or (c) the benefits relate to training.(4) In this Part "benefits" includes facilities and services.(5) In the case of an act which constitutes discrimination by virtue of section 55, this section also applies to discrimination against a person who is not disabled.(6) This section applies only in relation to employment at an establishment in Great Britain. 5. Meaning of "discrimination". (1) For the purposes of this Part, an employer discriminates against a disabled person if - (a) for a reason which relates to the disabled person's disability, he treats him less favourably than he treats or would treat others to whom that reason does not or would not apply; and (b) he cannot show that the treatment in question is justified. (2) For the purposes of this Part, an employer also discriminates against a disabled person if- (a) he fails to comply with a section 6 duty imposed on him in relation to the disabled person; and (b) he cannot show that his failure to comply with that duty is justified. (3) Subject to subsection (5), for the purposes of subsection (1) treatment is justified if, but only if, the reason for it is both material to the circumstances of the particular case and substantial. (4) For the purposes of subsection (2), failure to comply with a section 6 duty is justified if, but only if, the reason for the failure is both material to the circumstances of the particular case and substantial. (5) If, in a case falling within subsection (1), the employer is under a section 6 duty in relation to the disabled person but fails without justification to comply with that duty, his treatment of that person cannot be justified under subsection (3) unless it would have been justified even if he had complied with the section 6 duty. (6) Regulations may make provision, for purposes of this section, as to circumstances in which- (a) treatment is to be taken to be justified; (b) failure to comply with a section 6 duty is to be taken to be justified; (c) treatment is to be taken not to be justified; (d) failure to comply with a section 6 duty is to be taken not to be justified.(7) Regulations under subsection (6) may, in particular - (a) make provision by reference to the cost of affording any benefit; and (b) in relation to benefits under occupational pension schemes, make provision with a view to enabling uniform rates of contributions to be maintained."[10]Section 6 concerns the employer's duty to make adjustments for disabled employees and section 7 provides an exemption from Part II for certain small businesses. Section 8, headed "Enforcement, remedies and procedure", is relevant and I should cite subsections (1) and (2) which provide as follows:
"(1) A complaint by any person that another person - (a) has discriminated against him in a way which is unlawful under this Part, or (b) is, by virtue of section 57 or 58, to be treated as having discriminated against him in such a way, may be presented to an employment tribunal. (2) Where an employment tribunal finds that a complaint presented to it under this section is well-founded, it shall take such of the following steps as it considers just and equitable - (a) making a declaration as to the rights of the complainant and the respondent in relation to the matters to which the complaint relates; (b) ordering the respondent to pay compensation to the complainant; (c) recommending that the respondent take, within a specified period, action appearing to the tribunal to be reasonable, in all the circumstances of the case, for the purpose of obviating or reducing the adverse effect on the complainant of any matter to which the complaint relates."
[11]Sections 57 and 58, both referred to in section 8(1), are headed "Aiding unlawful acts" and "Liability of employers and principals" respectively, but are not relevant for present purposes. Section 55 is, however, of paramount relevance and I must set it out in full. It appears in Part VII of the DDA and reads as follows:
"55 Victimisation (1) For the purposes of Part II, Part 3 of Part 4, a person ("
A") discriminates against another person ("B") if – (a) he treats B less favourably than he treats or would treat another 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 (ii) given evidence or information in connection with such proceedings brought by any person; or (iii) otherwise done anything under this Act in relation to A or any other person; 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. (3) Where B is a disabled person, or a person who has had a disability, the disability in question shall be disregarded in comparing his circumstances with those of any other person for the purposes of subsection (1)(a). (3A) For the purposes of Chapter 1 of Part 4 - (a) references in subsection (2) to B include references to - (i) a person who is, for the purposes of that Chapter, B's parent; and (ii) a sibling of B; and (b) references in that subsection to this Act are, as respects a person mentioned in sub-paragraph (i) or (ii) of paragraph (a), restricted to that Chapter. (4) Subsection (1) does not apply to treatment of a person because of an allegation made by him if the allegation was false and not made in good faith."[12]Mr Bruce's originating application twice alleged that what he was complaining of was victimisation contrary to, or within, section 55. Nowhere in it does he allege that Addleshaw has committed any unlawful discrimination against him under any other provision of the DDA. The decision of the employment tribunal[13]On 7 February 2003 Mr Doyle, sitting alone as chairman, made his decision that Mr Bruce's application should be struck out under rule 15(2)(c) of the 2001 Rules as having no reasonable prospect of success. His reasons were shortly expressed and so I will set them in full:
"8. By this originating application [Mr Bruce] complains of "discrimination by victimisation contrary to section 55 of the [DDA]"
. The particulars of that complaint refer to the ingredients of section 55 and identify the less favourable treatment (in terms of section 55) of which he complains. In essence, he complains that [Addleshaw] has written to third parties and other solicitors to seek information about other claims made by [Mr Bruce] and has sought to persuade the Attorney - General to commence "vexatious litigant" proceedings against [Mr Bruce]. He complains that thereby he has been caused to be subjected to detriment(s) by other potential employers and third parties. 9. Section 55 creates no cause of action. It is not a free-standing provision. So far as is relevant to the jurisdiction of an Employment Tribunal, it merely defines discrimination for the purposes of acts which are made unlawful (if at all) by Part II of the Act. The unlawful acts of which an applicant might complain are set out in section 4 of the Act. The originating application makes no reference to section, 4 either expressly or by implication. [Mr Bruce] cannot rely upon section 4(2) because [Addleshaw] is not his employer nor does [Addleshaw] otherwise employ him. A general reference in the particulars of the complaint to "detriment" is not sufficient to bring the claim within section 4(2)(d) where there is no employment relationship between the parties. He does not rely upon section 4(1) (which would apply to an applicant for employment) and he does not assert in this originating application that [Addleshaw] has discriminated against him by way of victimisation in any of the ways contemplated by section 4(1)(a)-(c). 10. Accordingly, the complaint in this originating application cannot succeed as a matter of law. It identifies no cause of action falling within the jurisdiction of the Tribunal. It has no reasonable prospect of success. It is thus misconceived. It is ordered to be struck out in accordance with rule 15(2)(c) of the Employment Tribunal Rules of Procedure 2001." The appeal to this appeal tribunal.[14]I shall first approach the issue raised by the appeal without reference to the main authority to which both parties have referred me. So approaching the matter, I take the view that the chairman was correct in holding that section 55 is not a free-standing provision identifying a factual basis capable of forming the foundation of a potential claim of alleged victimisation. As the chairman rightly said, it is no more than a section which describes the elements of a particular type of discrimination. It does not by itself provide that discrimination of that type is unlawful and so it cannot therefore give rise to any remedy at the suit of someone claiming to be a victim of it. In this respect section 55 does no more to identify the factual ingredients of a cause of action than do, for example, the definition provisions contained in sections 1 and 4 of the Sex Discrimination Act 1975 and sections 1 and 2 of the Race Relations Act 1976. It follows in my view that Mr Bruce was in error in his IT1 in twice asserting that he had been victimised contrary to section 55. The facts he alleged could not, without more, and even if proved, entitle him to any remedy against Addleshaw.[15]What section 55 does do is to provide that victimisation of the nature there described will amount to discrimination for the purposes of other Parts of the DDA, including in particular Part II. To the extent that those other Parts make discrimination unlawful, they similarly outlaw discrimination by way of victimisation as described in section 55. A claimant in an employment tribunal who wishes to assert that he has been victimised must therefore be able to prove that he has been the victim of discrimination of a type rendered unlawful by Part II. It is plain from the combined effect of the opening words of sections 4(1) and 4(2) and from section 55 that victimisation of the nature described in section 55 is a form of discrimination which is outlawed by Part II.[16]Mr Bruce's written submissions show that he recognises that Part II of the DDA, dealing as it does with employment relations, is the only Part of the DDA which has possible relevance to his claims. It is clear that he also recognises that the only provisions in Part II which render discrimination unlawful and which are said by him to be of potential relevance to his claims are those in sections 4(1) and/or 4(2). The Chairman pointed out in his reasons that Mr Bruce's originating application makes no reference to section 4 either expressly or by implication. In his written argument Mr Bruce criticises that observation saying, in effect, that an applicant has no duty to plead law in his originating application. As a general rule, I would be disposed to agree with Mr Bruce on that. But the applicant must at least plead sufficient facts to show that he has an arguable case in law for the relief he claims and, with respect to Mr Bruce, not only does he make no express reference to sections 4(1) or 4(2), he does not even plead facts which set up an arguable case of unlawful discrimination under either of those subsections. In particular, he does not allege that he either is or ever was an employee of Addleshaw although this is no doubt because, as I understand it, he is not and never has been such an employee. Nor does he in terms allege that he has ever sought and failed to obtain employment from Addleshaw, although he comes inadequately close to doing so in paragraph 5.1.6 in which he alleges, inter alia, that:
"…I have pursued employment opportunities and subsequently taken claims under this Act …[Addleshaw] has afforded me this treatment only because I have taken Employment Tribunal proceedings against them and other potential employers."
[17]In fact, I understand the background to be that Mr Bruce has applied to Addleshaw for employment but was unsuccessful in his application or applications. He nowhere alleges that in his pleading, the whole of which is devoted to a misconceived attempt to base a claim on facts alleged to meet the ingredients of the definition of victimisation in section 55. For reasons given, in doing so Mr Bruce was directing his fire at the wrong target.[18]I understand him, however, to recognise in his written arguments that if his originating application is to survive, he either will or may have to show that, Addleshaw's pleaded actions arguably amount to discrimination by way of victimisation of a nature rendered unlawful by either sections 4(1) or 4(2) of the DDA. By his arguments he seeks to show this.[19]I shall take section 4(2) first. There is and can be no question of Addleshaw having arguably discriminated against Mr Bruce, whether by victimisation or otherwise, contrary to section 4(2) because that section only relates to claims by disabled people "whom [the respondent] employs" and Mr Bruce is not and never has been employed by Addleshaw.

(d) should be interpreted as if it reads:

"(2) It is unlawful for an employer to discriminate against a disabled person whom he employs or refused to employ – … (d) by dismissing him, or subjecting him to any other detriment."
[20]Were it so to read, then Mr Bruce latches on to the final seven words of section 4(2)(d) and argues that Addleshaw's conduct of which he complains in his originating application has caused him such detriment. If it were legitimate to interpret section 4(2) in the manner which Mr Bruce invites, that is by the addition of the extra four words to the opening of section 4(2), it might perhaps be that he would have an arguable case that the acts of victimisation he alleges against Addleshaw amounted to unlawful discrimination of him contrary to section 4(2)(d). Mr Bruce's difficulty, however, is that his suggested interpretation of section 4(2) is in my view a wholly impossible one, which I unhesitatingly reject. So to interpret section 4(2) is not to interpret it at all, it is to rewrite it. In my judgment, Mr Bruce has no arguable case that he has been unlawfully victimised contrary to section 4(2).[21]Turning to section 4(1), I consider that Mr Bruce has no arguable case under that subsection either. His problem is that his job application or applications to Addleshaw are things of the past. They have been made, rejected and have come to a full stop. The acts of victimisation that Mr Bruce alleges against Addleshaw are not acts amounting to unlawful discrimination contrary to section 4(1) because they involved no discrimination against him of the nature described in section 4(1)(a), (b) and/or (c). This is not, of course, to say that a claim for victimisation can never be brought by an unsuccessful job applicant. Assume, for example, that A, a disabled person, applies to B for a job which is refused as a result of which A takes employment tribunal proceedings against B alleging discrimination on the grounds of disability. A then applies to C for a job who (let it be assumed) refuses to employ him on the retaliatory ground that he has taken disability proceedings against B. In those circumstances A would have an arguable claim against C for victimising him in refusing to offer him a job. But that is not this case. The acts of victimisation that Mr Bruce alleges against Addleshaw do not amount to discrimination against him of the nature referred to in any of section 4(1)(a), (b) or (c) and it is to be noted in particular that section 4(1)(c) does not, unlike section 4(2)(d), contain any sweeping up provision such as "or subjecting him to any other detriment".[22]In my judgment, therefore, Mr Bruce's originating application discloses no arguable case against Addleshaw, has no reasonable prospects of success and was rightly struck out by the Chairman.[23]Turning to authority, Mr Bruce submits that the decision of the House of Lords in Rhys-Harper v Relaxion Group plc [2003] IRLR 484 , a decision which postdates that of the Chairman in the present case, shows that he has a good arguable case. I do not for my part understand why. The House of Lords was there concerned with a number of appeals arising under the Sex Discrimination Act 1975, the Race Relations Act 1976 and the DDA, the central question being whether the provisions of section 4(2) of the DDA and its equivalent in the other legislation extended not just to persons currently employed by the respondent, but also to persons who had formerly been so employed. The answer was 'yes', but the decision on that issue is of no assistance in disposing of this appeal. This is not a section 4(2) case.[24]Mr Bruce relies, however, upon a statement of Lord Hobhouse of Woodborough in paragraph 147 of the speeches of the House of Lords, although in order to understand what Lord Hobhouse was there saying in its proper context it is necessary also to read paragraphs 135 and 148. They read as follows:
"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 the case of Coote (case C-185/97) applied by Morison J in Coote (No. 2) [1999] IRLR 452, to which I will revert later. … 147 Victimisation What I have said in the proceeding 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 s.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 had faith. 148 However it is still necessary for the person making a victimisation complaint 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 s.6(2). The less favourable treatment has to come within one part or another of s.6 and, if it is upon s.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 ECJ 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 s.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."
[25]Mr Bruce latches on to Lord Hobhouse's observations in paragraph 147 that:
"Victimisation is in principle a free-standing unlawful wrong."
In my judgment, however, Lord Hobhouse was not there saying that a provision such as section 55 of the DDA confers a separate free-standing cause of action on proof of facts falling within the definition of victimisation that section 55 provides. All he was saying was that victimisation is a free-standing wrong in the sense that it is not dependent on the primary criterion of discrimination, that is discrimination on the grounds of sex, race or disability. He makes it clear in paragraph 148, for example, that in a claim of victimisation under the Sex Discrimination Acts 1975 it is still necessary to bring the victimisation claim within the 'field' which incorporates the victimisation definition and in, for example, the sex discrimination case which was before the House that meant bringing it within section 6(2) in Part II of the Sex Discrimination Act 1975, the Part headed 'Discrimination in the Employment Field'. The point that victimisation is not a free-standing wrong in the sense in which Mr Bruce interprets Lord Hobhouse's words is also made clear in the speech of Lord Scott of Foscote, who said in paragraph 201:
"201 Special problems arise where the discrimination allegation is, or includes an allegation of victimisation. Victimisation (s.4 of the 1975 Act, s.2 of the 1976 Act, and s.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, eg in relation to an employed person by subjecting the person to any detriment (s.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."
[26]In my judgment there is, therefore, nothing in the speeches in Rhys-Harper to save Mr Bruce's originating application from the fate to which I consider the Chairman rightly consigned it.[27]Mr Bruce also referred me in his written submissions to some new disability regulations due to come into force in October 2004 (The Disability Discrimination Act 1995 (Amendment) Regulations 2003) but I am unable to identify their relevance to the issue before me. I add that he also asked me in the latest of his written submissions to identify by date each of his submissions which I have considered. I have considered those dated 23 December 2003, 16 January 2004 and 4 February 2004. I add also that Mr Grundy submitted additional submissions on 29 January 2004 which were not permitted by the original directions given by Judge McMullen. Mr Bruce was provided with them and responded to them on 4 February 2004. In his submissions in response he raised the question as to whether I should consider Mr Grundy's further submissions at all. I have taken the view that I should and I have considered them. Mr Bruce's full submissions in response to them suggest to me that he has not been disadvantaged by their late production and they go to issues of law which I consider that I could not simply ignore in dealing with Mr Bruce's appeal.[28]I dismiss Mr Bruce's appeal. Were I to do so he asked in his submission of 4 February 2004 for permission to appeal to the Court of Appeal. I refuse permission since I regard the case as a plain one and I am of the view that an appeal would have no realistic prospect of success. I will direct the production of a transcript of this judgment and will extend Mr Bruce's time for seeking permission from the Court of Appeal direct, if he is so advised, and for appealing if permission is granted, until the expiration of 21 days after the provision to him of such transcript.