Butterworth v The Police and Crime Commissioner’s Office for Greater Manchester & Anor (Victimisation Discrimination) [2015] UKEAT 0222_15_1611

EAT
Butterworth v The Police and Crime Commissioner’s Office for Greater Manchester & Anor (Victimisation Discrimination)
[2015] UKEAT 0222_15_1611 · 2015-11-16
[211]“211. Therefore, although being employed is one of the keys which unlocks access to the rights and remedies conferred by the anti-discrimination Acts, to a considerable extent those Acts are actually concerned with discrimination in relation to the various kinds of opportunities that employees may enjoy in addition to any contractual rights. Of course, not even all contractual rights end on the termination of employment: an employee may still have both rights and obligations under the contract. Most obviously, an employee may have a right under his contract to be paid a pension or to continue to enjoy free medical insurance, while he may also be bound by a restrictive covenant in the contract. Not only an employee’s rights and obligations under the contract of employment can continue after the employment itself comes to an end: an employer may continue to afford his former employees opportunities to enjoy some of the additional non-contractual benefits, such as access to sports or other recreational and social facilities. Since the anti-discrimination Acts are not tied to contractual rights and obligations, there is in principle no reason why the Acts should cease to have effect in respect of these continuing opportunities. I therefore have difficulty in seeing why Parliament, however cautious its approach, would ever have intended that it should be lawful for an employer to discriminate against a former employee in these respects. The idea, for instance, that Parliament intended that, after the 1976 Act was in force, an employer should still be able to bar a black former employee from entering the employer’s social club while allowing white former employees to continue to enjoy the facility strikes me as untenable. 212. The same applies to the provision of references. In some cases the employee may have a contractual right, whether express or implied, to be supplied with a reference. But even where that is not so, since an employee or former employee will often stand little chance of getting a new job without a reference, an employer will recognise at least a moral duty to provide one …” 23. In his skeleton argument at paragraph 34 Mr Ohringer said that the Directive, the explanatory notes to the EqA and the reasoning in Rhys-Harper placed the emphasis on prohibiting discrimination in the discharge of responsibilities arising through employment and continuing after termination. It was not relevant for the purpose of the legislation whether those responsibilities were in the hands of the ex-employer, or had been passed on to someone else. He noted that paragraphs 10.57 to 10.62 of the Equality and Human Rights Commission Code of Practice on Employment 2011 were consistent with that approach. That argument would apply to the rights asserted in respect of the EqA . The protection of whistleblowers is to be found in the ERA 1996 and is domestic in origin. Here, Mr Ohringer argued that the public policy in providing robust and expansive protection was similar and that similar purposive approaches to the underlying legislation fell to be applied. 24. Mr Ohringer drew particular attention to two decisions, the first in time being that of Woodward v Abbey National plc (No. 1) [2006] ICR 1436 . That was a case in which the Claimant had complained that after her employment had ended she had suffered a detriment contrary to section 47B(1) on the ground that she had made a protected disclosure during her employment. On appeal to the Court of Appeal from the dismissal of her claim on the basis that the Employment Tribunal had no jurisdiction to hear such a post-termination complaint the Court of Appeal thought that the context and purpose of the insertion of the provisions relating to public interest disclosure into the ERA by the Public Interest Disclosure Act 1998 was to protect workers who made disclosures of information in the public interest, so as to provide them with a right of action if they suffered detriment as a result, and that it would be palpably absurd and capricious for Parliament to have afforded protection only in respects done by the employer while the contract of employment subsisted. 25. The decision second in time, BP plc v Elstone [2010] ICR 879 , was a decision of the Appeal Tribunal over which I presided. In that case the Claimant suffered a detriment at the hands of his current employer. He argued that the reason for his suffering that detriment was that in employment he had made a protected disclosure. The point in the case was that the employment during which he had made the disclosure was with an earlier and separate employer. Nonetheless, we held that the statute was to be construed so that he had a right of action. Mr Ohringer draws attention to paragraph 34, in which is said:
“34. … First, the courts are obliged to take a purposive approach to the statutory provisions, so as to advance the protection of whistle-blowers from later retribution by an employer. It is protection, rather than the identity of the employer, which is central to this. …” 26. Mr Ohringer argued that though Rhys-Harper , Coote , Elstone and Woodward were all cases in which the Claimant was either an employee (in the sense of an ex-employee) of the alleged discriminator or was in employment by the alleged discriminator, and was not as here someone who had never been in an employment relationship directly with the alleged discriminator, nonetheless section 108 should be purposively construed so as to provide for that. He argues, as said in paragraph 34 of Elstone - which I have already quoted in substance above - that for the protection to be given, the responsibility not to discriminate may be in the hands of someone who has never been the employer, as here. The essence of the approach in the European Court of Justice was to provide an effective support for the principle of equal treatment now to be found in Directive 2006/54. That says in recital 32: “Having regard to the fundamental nature of the right to effective legal protection, it is appropriate to ensure that workers continue to enjoy such protection even after the relationship giving rise to an alleged breach of the principle of equal treatment has ended. An employee defending or giving evidence on behalf of a person protected under this Directive should be entitled to the same protection.” 27. Article 17(1) provides: “Member States shall ensure that, after possible recourse to other competent authorities including where they deem it appropriate conciliation procedures, judicial procedures for the enforcement of obligations under this Directive are available to all persons who consider themselves wronged by failure to apply the principle of equal treatment to them, even after the relationship in which the discrimination is alleged to have occurred has ended.” 28. At Article 24 under the heading “Victimisation”: “Member States shall introduce into their national legal systems such measures as are necessary to protect employees, including those who are employees’ representatives provided for by national laws and/or practices, against dismissal or other adverse treatment by the employer as a reaction to a complaint within the undertaking or to any legal proceedings aimed at enforcing compliance with the principle of equal treatment.” 29. He submits therefore that where the statute appears at section 108(1)(a) to limit itself to a “relationship that used to exist between them ”
[emphasis added], the words “between them” are not an essential aspect of the relationship, nor of the test described. The test is one of a sufficiently close connection. The same test was that which was referred to in the speech of Lord Hobhouse in Rhys-Harper (see paragraphs 139 and 140). To give little or no weight to the words “between them” would fulfil the purpose of providing effective protection. The requirement that there be a close connection would sufficiently exclude a flood of claims. It would necessarily confine the potential proceedings to those against an employer who if it never had been an actual employer of the Claimant was nonetheless closely related to one which was, or to an employment relationship that the Claimant had previously enjoyed. 30. Mr Crosfill responds by arguing that the reference to “relationship” in context denoted a relationship that was recognised elsewhere within the EqA 2010 . The discrimination would have to arise in the relevant respect under section 39 of the Act. Section 108 is general to all the different forms of discrimination to which the EqA 2010 relates, only some of which relate to discrimination in employment. The relationships recognised in Part V refer to employees and applicants; though he accepts that “employee” may mean “ex-employee”, it does not mean “non-employee”. There are, he submits, restrictions upon the scope of the discrimination statutes. These boundaries to the scope of the statutory scheme have been recognised in many cases. 31. An example is the case recently decided in the Court of Appeal of Halawi v World Duty Free Group UK Ltd t/a World Duty Free [2014] EWCA Civ 1387 , [2015] IRLR 50 . That was a case in which the Claimant who worked airside at Heathrow selling cosmetics at a retail outlet in circumstances that rendered her indistinguishable, so far as public appearances were concerned, from a direct employee, nonetheless was engaged to work there upon terms and through a web of relationships that gave her no standing to complain of the act of discrimination in respect of which she sought to sue. At all levels below the Supreme Court, each of the Judges who had dealt with the case recognised that they felt uneasy with the outcome - see my own comments when the case was before the Appeal Tribunal - but nonetheless felt that the general prohibition against discrimination could not extend to provide her with a potential remedy in this particular case. By way of postscript, in February this year the Supreme Court rejected an application for permission but did so in terms that were strikingly trenchant for the Supreme Court, commenting that there was no conceivable way in which the Claimant could show the necessary relationship that would entitle her to sue. The case is one of many that demonstrate that there are limits within which the discrimination statutes can apply. Discussion 32. The question that Mr Ohringer asks is whether there is sufficient proximity between the position of the PCCO and Commissioner and the Claimant to enable her to sue. To my mind, much depends upon the issue with which I first began this Judgment: the scope of Schedule 15 to the PRSRA . Under that Act, as I have pointed out, the rights, obligations and duties of an employee under a contract of employment would not transfer to the PCCO unless the employee were employed immediately prior to the transfer, which the Claimant here was not. That inevitably draws a line between such a person, and such a relationship, and other relationships that may be created or recognised after. The fact that the PCCO is created does not of itself have the effect that it becomes an ex-employer of the Claimant, nor she an ex-employee of it. 33. The words “between them” in section 108 of the EqA must be given some force. I cannot ignore them as mere surplusage. If they did not exist, then the text of close connection would provide for a limit to claims, but the Act itself calls for a relationship that used to exist “between them”. Those last two words are present in the statute. The purpose of Parliament in inserting them was to provide for relationships of an employment type that had once existed between the parties as such. In just the same way as an employee of a Police Authority who is not employed immediately before a transfer does not have rights, powers, duties and liabilities transferred under paragraph 6 of the Schedule, and therefore cannot enforce any rights, powers, duties and obligations against the new body created, this seems to me effectively to prevent the Claimant raising a claim in the current context. 34. The purpose of the provisions in general is undeniable. The prohibition of discrimination is important, indeed essential, but I accept that there are some relationships where the general appeal to the social advantage of eliminating forms of discrimination may be morally justified but give rise to no legal remedy. Here, as it seems to me, Parliament does not enact by section 108 a section that can trump the provisions under the PRSRA , nor do I see that the appeal to the European authorities to which I was taken takes the matter very much further. It shows no case in which somebody who was not an employee and had no employment relationship was able to sue. If it had been intended in the particular context of the replacement, using the word colloquially, of a Police Authority by a Police Commissioner and his office that the latter should inherit all of the duties not to discriminate against any former employee which that former employee might have been able to assert against her former employer, the Police Authority, it could have said so, but it did not. Parliament was not, in my view, required as a matter of European legislation or case law so to do. I accept Mr Crosfill’s appeal that European law does not directly affect the particular decision in this particular case. 35. I have thus dealt with the two arguments that Mr Ohringer has advanced and given my reasons for rejecting both of them. Those arguments broadly cover the ground to which the grounds of appeal themselves were directed, but it is important to look at those grounds themselves. The first ground was - and I summarise - that Schedule 15 provided for the transfer of all rights and liabilities of the Police Authority to the PCCO, the effect of which was to transfer the obligations applying to ex-employees under section 108 EqA and section 47B ERA from the Police Authority to the PCCO. For the reasons I gave in dealing with the first point, that contention cannot stand, and the first ground must be dismissed. 36. The second was that further and/or in the alternative the Tribunal erred in law in failing to interpret the relevant provisions of the EqA and the ERA as covering the conduct not only of an ex-employer but of anybody that takes the place of the ex-employer. I have already made observations about the breadth of the expression such as “takes the place of”, but it is said in this second ground (paragraph 15) that that interpretation is correct as a matter of domestic statutory construction because it gives effect to the intention of Parliament to protect ex-employees from treatment that would be unlawful during the currency of their employment. That, however, has to be read whilst looking at what Parliament did in the PRSRA , as the Employment Judge herself did. The provisions reflect the provisions of TUPE , which do not go as far as Mr Ohringer’s argument would. The second ground, at paragraph 15b, was that a proper interpretation would recognise that for ex-employees to be adequately protected the legislation must extend to anyone who continued to hold rights or responsibilities relating to the individual that have arisen from the employment relationship. Once one concludes, as I do, that the Act has not transferred the responsibilities, then this ground cannot stand. Paragraph 15c is no more than an appeal to general rhetoric. 37. The third ground was that the EqA must be interpreted to give full effect to the European Directive 2006/54 and the Tribunal’s Judgment failed to give full effect to the recast Directive and was in error. I have dealt with that. 38. The fourth was that if section 108 EqA is limited to cover only ex-employers it is incompatible with the recast Directive. In my view that argument has no substance, because the recast Directive does not require section 108 to be read in any way other that in which it is expressed. It refers to relevant relationships that are “between them”, and I do not see that European law requires those words to be omitted. 39. The fifth ground is consequential upon findings in the Claimant’s favour in any of the first four grounds; it therefore falls too. Conclusion 40. A reference is sought; it seems to me there is no lack of clarity in the position that applies, and, despite the quality of Mr Ohringer’s arguments, this appeal must be, and is, dismissed. Application to Appeal to the Court of Appeal 41. The application is made centrally upon the question of the victimisation provisions. I do not think it could be at all arguable that a claim for sex discrimination or for harassment made against someone who is not and has never been the employer could succeed, nor do I read the application as seeking to challenge centrally the conclusions in respect of the PRSRA . It does raise the point whether section 108 itself too much restricts the ability of a Claimant to bring a claim of victimisation, because of the force of the words “between them”. The argument is one that I have considered and rejected. If there is to be any point that is to go forward, it is that latter point, and it must be borne in mind that the Claimant here raised a number of claims only some of which were victimisation. The argument seems to me, for the reasons I gave, potentially a step too far, and I shall leave it to the Court of Appeal whether it thinks that in respect of the section 108 point this is the right case in which to consider the question further.