Standard Life Bank Ltd v Wilson [2008] UKEAT 0017_07_0403

EAT
Standard Life Bank Ltd v Wilson
[2008] UKEAT 0017_07_0403 · 2008-03-04
[1]This is an appeal at the instance of the Respondents against the judgment of an Employment Tribunal, Chairman Ms Susan O’Brien, sitting at Edinburgh, allowing the Claimant to amend his ET1. That was a claim which had been received by the Tribunal on 19 June 2006. The judgment was registered on 23 January 2007 and its effect was to allow the Claimant to add a claim of age discrimination to his case under reference to the provisions of regulation 24(3) of the Employment Equality (Age) Regulations 2006 (‘the 2006 regulations’). We propose to continue to refer to the parties as Claimant and Respondents.[2]The Claimant was represented before the Tribunal by his son, Mr C Wilson, Advocate and the Respondents were represented by Mr T Hadden, solicitor. Before us, the Claimant was represented by Mr Truscott QC and the Respondents by Mr Napier QC. Background[3]On 15 March 1999, the Claimant commenced employment with the respondents as a customer service representative. On 4 April 2001 , he reached his 60 th birthday and on 5 April 2001 his prior employment terminated on grounds of retirement. He began to receive a pension on that date and the Respondents ceased paying any employers’ contributions into his pension. He was also immediately re-engaged under a fixed term contract, as a telebanking representative. On 10 October 2002 that contract was extended until April 2006. On 1 March 2006, the Claimant wrote to the Respondents indicating that he considered he had been treated less favourably than comparable permanent employees. On 22 March 2006, the Respondents’ head of human resources met to discuss the Claimant’s letter. On 24 March 2006, that individual wrote to the Claimant indicating that the Respondents did not consider that the Claimant had received less favourable treatment on account of his fixed term status; no employees aged over 60 years received the benefit of employers’ pension contributions. The Claimant appealed, unsuccessfully.[4]On 3 April 2006 , the Claimant’s fixed term contract expired. On 4 April 2006 the Claimant reached the age of 65 years .[5]The ET1, which was lodged on 19 June 2006, alleged that the Claimant had received less favourable treatment contrary to the Fixed Term Employees (Prevention of Less Favourable Treatment) Regulations 2002 in respect that the Respondents had failed to make employers’ contributions to his pension between April 2001 and April 2006. By letter to the Tribunal dated 9 October 2006, the Claimant sought to amend his ET1. His letter stated:
“ I also wish to include in my claim reference to the Employment Equality (Age) Regulations 2006 , which make age discrimination unlawful and which apply retrospectively.”
[6]At a hearing on 13 October 2006, the Claimant was ordered to lodge a formal document seeking to amend his ET1 and he did so, in a document headed ‘New Head of Claim’. Its terms make it plain that he was seeking to do as he had, in his letter, indicated that he wished to do, namely to add an age discrimination claim to his ET1. The essence of his submission is to be found in paragraph 7 of that document:
“ Regulation 24 makes unlawful the subjection of a former employee to a continuing detriment as a result of any action which is in breach of any previous provision of that Part. In terms of Regulation 24(3), that action may have been before the coming into force of the Regulations.”
[7]A hearing to determine whether he should be allowed to do so took place on 18 December 2006 and resulted in the judgment which is, in this appeal, appealed against. The Tribunal’s Judgment[8]The Tribunal considered the terms of the regulations, particularly paragraphs 1, 7 and 24. They indicated that the interpretation of paragraph 24 caused them difficulty. They noted that the Claimant argued that the effect of that paragraph was to allow him to introduce a claim of age discrimination notwithstanding the fact that his employment ended many months previously at a time when age discrimination was lawful. They found: “ The fact that the age discrimination was lawful at the time on the facts here is negated by subsection (3), which takes the definition of what is and what is not unlawful forward to the present. The alleged discrimination arises out of and is closely connected to the relevant relationship.” (Tribunal judgment paragraph 19) noted that the Claimant was alleging that he had suffered a detriment, found that the failure to pay employers’ contributions between his 60 th and 65 th birthdays was a detriment and so allowed the Claimant to amend his ET1 to include a claim for age discrimination contrary to the 2006 regulations. Relevant Law[9]The relevant parts of the 2006 regulations are: Paragraph 1(b), which provides that where it is alleged that an employer unlawfully discriminated on grounds of age in respect of pension matters, the regulations came into force on 1 December 2006 paragraph 3, which contains provisions that a person discriminates against another where he treats him less favourably on grounds of age or applies to him a provision, criterion or practice which he would apply to others of the same age group but which puts that person at a disadvantage and cannot be justified, all in familiar terms paragraph 7 which makes it unlawful for an employer to discriminate in the manner prohibited by paragraph 3, in various respects paragraph 24, which is in the following terms:
“ (1) In this regulation a “relevant relationship” is a relationship during the course of which an act of discrimination against, or harassment of, one party to the relationship (“B”) by the other party to it (“A”) is unlawful by virtue of any preceding provision of this Part. where the discrimination or harassment arises out of and is closely connected to that relationship. (3) In paragraph (1), reference to an act of discrimination or harassment which is unlawful includes, in the case of a relationship which has come to an end before [the date on which the act of discrimination or harassment became unlawful by virtue of these Regulations], reference to an act of discrimination or harassment which would, after [that date] be unlawful.”
[10]The resolution of this appeal turns entirely on the interpretation of these provisions. Of particular significance are the terms of regulation 24. They have not been the subject of prior judicial consideration. The Appeal[11]For the Respondents, Mr Napier submitted that the Tribunal had erred in law. Regulations 7 and 3 of the 2006 regulations rendered age discrimination in employment unlawful. Regulation 24 came into force, for the purposes of a claim such as the present one, on 1 December 2006. As the Tribunal recognised, their interpretation gave the regulations restrospective effect. That was not what the regulations provided.[12]The act complained of occurred on 3 April (see: paragraph 42(4)(b) of the 2006 regulations). Had it occurred after 1 December 2006, it would have been a breach of the regulations. It was not, however, unlawful at the time it was committed and the Claimant could not, accordingly, competently advance the present claim.[13]By way of illustration (recognising that they are not authoritative), Mr Napier referred to passages in the DTI guidance ‘Notes on Regulations’ relating to the 2006 regulations and the absence of any indication in them that the regulations have retrospective effect. He also referred to the explanatory note to the regulations for the same purpose and to the HMSO publication:
“Statutory Instrument Practice” which is a manual for the instruction and guidance of draftsman which states, in its paragraph 2.13.4, that: “ authority in the enabling Act should be cited if an instrument has retrospective effect.”
No such reference appeared in the regulations which, again, was indicative of it not being intended that they be retrospective. It would, he submitted, be surprising if such an important feature was omitted from these documents.[14]Further, he referred to there being a strong presumption against legislation having a retrospective effect: Stair Encycopaedia vol 12 reissue 2002 para. 12; F Bennion, Statutory Interpretation 4 th ed. 2002, section 97.[15]In short, the plain meaning of paragraph 24(3) was that it defined for the purposes of what was a ‘relevant relationship’ within the meaning of paragraph 24(1), the scope of an act of unlawful discrimination. It did not define it for the purposes of the regulations generally and in particular it did not define it for the purposes of what is unlawful under paragraphs 3 or 7, which, read together, define unlawful age discrimination in employment. Neither did it define what is an unlawful act of discrimination for the purposes of paragraph 24(2), which deals with what is unlawful post – employment discrimination on grounds of age.[16]For the Claimant, Mr Truscott began by reminding us, under reference to what was said by this Tribunal in Edinburgh City Council v Marr & Ors 15. (EATS/0082/06) to the effect that it is only where a tribunal has acted outwith its powers or outwith guiding legal principles or in a way that no reasonable Tribunal properly directing itself as to the relevant facts and law would have acted, that it is open to this Tribunal to interfere with its exercise of a discretion. He did, however, accept that if we were satisfied that the claim the Claimant was seeking to advance via his proposed amendment was incompetent then the Tribunal’s decision could and should be reversed.[17]For a general discussion of post relationship discrimination, Mr Truscott referred to the case of Rhys-Harper v Relaxion Group plc [2003] ICR 867 HL though he properly indicated that the case was not directly in point and did not deal with the interpretation of the 2006 regulations.[18]Regarding paragraph 24(3) of the 2006 regulations, Mr Truscott submitted that it meant what it said and that was to be considered against a background of what mattered being the establishment of the close connection between the discrimination and the relationship. Regulation 24(3) dealt with the ‘when’ and showed that in this case, the Claimant had a relevant claim. It was all to do with continuing consequences. The phrase ‘it is unlawful’ in paragraph 24(2) should not be taken in isolation because it was also to be found in paragraph 24(1).[19]Regarding retrospectivity, its likelihood or unlikelihood and its unattractiveness, Mr Truscott made two main submissions. Firstly, he questioned whether this was in fact a case of retrospectivity, since there was a continuing effect. Secondly, he submitted that even if there was undesirable retrospective effect, it was limited in nature. By that he meant that since cases would be prima facie time barred, it could not be assumed that they would be allowed to be advanced. It would be a matter of the Tribunal’s equitable discretion in the matter (paragraph 42(3) of the 2006 regulations). It need not be felt that thousands of such cases would be allowed to be brought.[20]Otherwise, Mr Truscott submitted that there was no room for a purposive construction or one which sought to fill a casus omissus . In support of his submissions regarding the rules of statutory interpretation he referred to: Shop and Store Developments v Inland Revenue Commissioners [1967] AC 472 at 493, Magor and St Mellons District Council v Newport Corporation [1952] AC 189 HL at 191, Fisher v Bell [1961] 1QB 394, and Bennion at sections 304, 306 and 308 . Further there was nothing in the European context that pointed to a particular interpretation being correct. In all the circumstances, the appeal should, he submitted, be refused and the case remitted to the Tribunal to allow a hearing to take place. Discussion and Decision[21]We are satisfied that the Tribunal erred in law.[22]We begin by observing that the Claimant seeks to advance his claim under regulation 24 and submits that the provisions of regulation 24(3) are such as to render it competent, notwithstanding that the actions complained of occurred prior to the coming into force of any of the 2006 regulations.[23]Before turning to the provisions of regulation 24, the structure of the regulations requires to be borne in mind. Paragraph 3 of the 2006 regulations provides the definition of what, for convenience, we will refer to as ‘age discrimination’ in terms which will be familiar to the reader of anti-discrimination legislation. The duty to refrain from age discrimination is imposed on those persons specified in terms of parts 2, 3 and 4 of the regulations as regards persons with whom they are in one or more of the relationships which are also specified.[24]The relationship of employment is one of the specified relationships; an employer is one of the persons on whom the duty to refrain from age discrimination lies. It is owed to his employees. To put it another way, as was commented by Lord Hope in the Rhys-Harper case:
“ 44……..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.”
[25]Thus, once there is a ‘relevant relationship’ the employer is put on notice that he owes such duties as are imposed on him by the regulations. The question that remains though is what is the nature and extent of those duties and when do they arise?[26]Paragraph 1 of the 2006 regulations sets out the dates from which the specified persons have imposed on them the duty to refrain from age discrimination. For the acts of employers specified in regulation 1(b) that date was 1 December 2006. For the acts of the persons specified in regulation 11 in respect of the matters there prohibited, it was also 1 December 2006: regulation 1(c). For all other acts of age discrimination, it was 1 October 2006: regulation 1(a). It was a matter of agreement that 1 December 2006 was the relevant date for the present claim.[27]Regulation 24 addresses the question of whether or not a person has a right to make a claim for age discrimination in respect of an act by a person with whom he was previously in a relationship where that act takes place after the relationship has come to an end. The answer to that question is yes but only if the relationship was either:(a) one during the course of which that other person in fact had a duty to refrain from age discrimination because of the provisions of part 2 of the 2006 regulations (i.e. a relationship which subsisted after 1 October 2006 for claims other than those relating to a regulation 1(b) or 1(c) matter, or which subsisted after 1 December 2006 if relating to such matters); or(b) one during the course of which that other person did not in fact have such a duty but is deemed to have done so (because if the relationship had not ended prior to 1 October 2006 or prior to 1 December 2006 if in relation to a regulation 1(b) or (c ) matter, the duty would have applied) and the act in respect of which he seeks to claim arose out of and was closely connected with that relationship and it occurred after the relevant commencement date for the regulations i.e. either after 1 st October 2006 or after 1 December 2006, depending on the nature of the claim.[28]We are of the view that the above is the result of a plain and straightforward reading of regulation 24. There is no ambiguity and no purposive construction is required. Further, whilst we fully agree that the authorities referred to by Mr Napier support the submission that there is a presumption against retrospective effect, there is no need to have resort to the presumption before the correct statutory interpretation is arrived at. The deeming to which we refer is the result of applying the provisions of regulation 24(3). It is important to note that its effect is not to render any act unlawful but to open the regulation 24(1) gateway to a claimant being able to claim that a post discrimination act is unlawful under regulation 24(2). The claimant cannot advance his regulation 24(2) claim if he is not able to get through the regulation 24(1) gateway. That does not, however, mean that either regulation 24(1) or 24(3) impose a duty on, in this case, the employer. Nor does it mean that any right of action arises from regulation 24(1) or 24(3). The imposition of duty and correlative conferring of right arise from regulation 24(2).[29]By way of illustration of how regulation 24 works, we propose to borrow, with gratitude, from Mr Napier’s skeleton argument: in January 2008 A refuses to provide B, a former employee, with a reference on grounds of age, the employment relationship having terminated on 31 December 2007. The relationship was one in which, during its subsistence (after 1 October 2006), the employer had a duty not to discriminate on grounds of age (regulations 1(a), 3 and 7). Regulation 24(2) plainly renders such post employment discrimination unlawful. in January 2008, A refuses to provide B, a former employee with a reference on grounds of age, the employment relationship having, in that case, terminated in April 2006. During its subsistence, it would not have been unlawful for A to discriminate against B on grounds of age. However, B can look to the deeming provisions of 24(3) to show that the relationship is nonetheless a ‘relevant relationship’ thus opening the door to the possibility of him being able to claim in respect of a post employment relationship act of discrimination. He has a relevant claim because the post employment act founded on occurred after 1 October 2006, from which date such discriminatory acts were rendered unlawful.[30]These are the only two sets of circumstances in which an employee has a relevant claim under regulation 24. The present case does not, however, fall within either of the above categories. That is, at its simplest, because it is not a claim for an act of post relationship discrimination; it is only certain acts of post relationship discrimination that are made unlawful by regulation 24. If an employee seeks to claim in respect of an act of age discrimination during the subsistence of an employment relationship, he must look to regulation 7 which is the provision that rendered such discrimination unlawful as from 1 October and 1 December 2006, as previously discussed. The Claimant’s complaint is of an act which was completed immediately before he left the Respondents’ employment. What he complains of is an act of the Respondents’ which took place during the subsistence of the employment relationship, in April 2006. Age discrimination was not, however, unlawful at that time. Nothing in regulation 24 shows that it is to be treated as having been unlawful and nothing in it confers on the claimant the right of action which he asserts In particular, we disagree with the Tribunal’s conclusion that the provisions of regulation 24(3) negate the fact that age discrimination was lawful at the time of the act complained of in this case. They have, we conclude, failed to appreciate that, as we have discussed, the part of regulation 24 which makes certain discriminatory acts unlawful is regulation 24(2) and that regulation 24(3) has no deeming effect on its provisions at all.[31]Furthermore, even if this claim could somehow be regarded as a claim in respect of a post relationship act (and there was no submission that it could), there is no case advanced of any act on the part of the Respondents that postdated the coming into force of the regulations. Without that, there can be no competent claim under regulation 24. It really just serves to highlight that what the Claimant is seeking to do in this case is not to advance a claim for an act of his employer which occurred after the relationship had ended (the event for which regulation makes provision) but to inject unlawfulness retrospectively into acts during a relationship which were perfectly lawful at the time they were carried out. Yet the terms of regulation 24 are such as to give no indication at all of such retrospective intention and we agree that had such a result been intended then it would have been made clear. Disposal[32]In these circumstances, we will allow the appeal, quash the Tribunal’s judgment allowing the Claimant to amend his case to add an age discrimination claim and remit to it to proceed as accords. © Copyright 2006