Mark Shulman, Consultant Solicitor at Keystone Law

DISCRIMINATION
Discrimination against former employees
There has been uncertainty as to whether the Equality Act 2010 (EA) prohibits acts of victimisation against former employees. The EAT in [Rowstock Ltd & Anor v Jessemey]()  [2013] ICR 807, held that it did not. However, in the later case of [Onu v Akwiwu]() [2013 ICR 1039], a differently constituted EAT decided that such discrimination is covered. So, what is the correct position in law? Does the EA prohibit acts of victimisation committed against a former employee? Yes, said the Court of Appeal in [Jessemey v Rowstock Ltd & Anr]() [2014] EWCA Civ 185.

Background
The Claimant brought a claim for victimisation after he was given a bad reference because he had previously brought ET proceedings for age discrimination. Both the ET and EAT concluded that whilst section 108 of the EA protects former employees from post-employment discrimination and harassment, it did not expressly protect against post-employment victimisation.

Historically, "first-generation" discrimination statutes (the Sex Discrimination Act 1975, the Race Relations Act 1976 and the Disability Discrimination Act 1995) prohibited discrimination against employees (rather than former employees). However, in Rhys-Harper v Relaxion Group plc [2003] ICR 867, the House of Lords held that the statutory language was capable of applying in certain circumstances to discrimination against (or victimisation of) former employees. Various subsequent Regulations prohibiting discrimination followed the same broad pattern as the original first generation statutes, but the sets of Regulations contained an express provision dealing with relationships which have come to an end.

The Court of Appeal considered that the upshot was that at the time that the EA was drafted, it was well-established that post-employment discrimination (including victimisation) was unlawful.

Section 108 of the EA is headed "Relationships which have ended" and reads (so far as material):

"(1) A person (A) must not discriminate against another (B) if —

(a) the discrimination arises out of and is closely connected to a relationship which used to exist between them, and

(b) conduct of a description constituting the discrimination would, if it occurred during the relationship, contravene this Act.

…

(7) But conduct is not a contravention of this section in so far as it also amounts to victimisation of B by A."

The EA was intended to give effect to the requirements of a number of EU Directives. The provisions prohibiting victimisation are not identically worded in these Directives, but they are broadly similar. The Court of Appeal stated that it was clear from the decision of the ECJ in Coote v Granada Hospitality Ltd [1999] ICR 100 that the anti-discrimination provisions required to be introduced by Member States under the directives must apply equally to acts done after, as well as during, the currency of the employment relationship.

The Court accepted that on a natural reading of the relevant provisions of the EA, post-termination victimisation is not prohibited. However, once the proper contextual materials were considered, it seemed equally clear that that was not the draftsman's intention.

Those contextual considerations were:

* at the time when the EA was drafted, the existing state of the law was that post-termination victimisation was unlawful (as established by the House of Lords in Rhys-Harper). Both the draftsman and Parliament must have been well aware of that history; * there was no indication that the Government intended to change the law by withdrawing the protection previously enjoyed by former employees; * the Explanatory Notes to section 108 of the EA stated that "A breach of this section triggers the same enforcement procedure as if the treatment had occurred during the relationship". Explanatory Notes are in principle admissible as an aid to construction: see R (Westminster City Council) v National Asylum Support Service [2002] 1 WLR 2956; * if post-termination victimisation were not proscribed, the UK would be in breach of its obligations as a matter of EU law; and * no rational basis was suggested by the parties for treating post-termination victimisation differently from post-termination discrimination and harassment (both of which are prohibited).

It followed that the apparent failure of the statute to proscribe post-termination victimisation was a drafting error.

Correcting drafting errors
How far was it right for the Court to go in correcting the undoubted drafting error? There was a difference of approach as between construing EU derived law and domestic law.
Since the relevant provisions of the EA were intended to give effect to the UK's obligations under EU law, when construing those provisions the Court had to apply the special approach explained in Ghaidan v Godin-Mendoza [2004] 2 AC 557 ("the Ghaidan approach"). Given the obligation on the English courts to construe domestic legislation consistently with Community law obligations, the Ghaidan approach is both broad and far-reaching and is wider than is permissible on the conventional domestic approach to the construction of statutes. However, the meaning of particular provisions still had to "go with the grain of the legislation" and be "compatible with the underlying thrust of the legislation being construed".

Given the existence of the EU obligation to proscribe post-employment victimisation, was it possible to imply words into the 2010 Act which achieved that result? The Court of Appeal thought it plainly was.

Where words fall to be implied into a statute in order to give effect to an EU obligation, it was not necessary to draft a formal quasi-amendment: what matters is the effect of the implication, rather than its precise form. Therefore, all that mattered for present purposes was that section 108 could have no meaning which was inconsistent with post-termination victimisation being unlawful.

Applying the more straightforward domestic route to the same result, by way of a "rectifying construction" it has long been established that the role of the Courts in construing legislation is not confined to resolving ambiguities in statutory language (Inco Europe v First Choice Distribution. The Court must be able to correct "obvious drafting errors". In suitable cases, in discharging its interpretative function the Court can add words, or omit words or substitute words. But, before interpreting a statute in this way the court must be abundantly sure of three matters:

1. the intended purpose of the statute or provision in question;
2. that by inadvertence the draftsman and Parliament failed to give effect to that purpose in the provision in question; and
3. the substance of the provision Parliament would have made, (although not necessarily the precise words Parliament would have used), had the drafting error in the Bill been noticed.

In the present case these three conditions were fulfilled. Further, in the present case, there was no real difference between the Ghaidan approach in relation to EU law and the approach based on purely domestic principles of statutory interpretation.

Accordingly, on either approach, post-termination victimisation was proscribed by the EA and the appeal was therefore allowed. In the light of the factual finding of the ET that the Claimant was given the bad reference because he was pursuing tribunal proceedings, that meant that the victimisation claim had to succeed and the case was remitted to the ET for the assessment of compensation.

Sex discrimination
Do the words "because of the pregnancy…" in section 18 of the EA have a broad or narrow meaning? And can there be both direct and indirect sex discrimination arising out of the same circumstances? These questions were considered in the recent case of [The Commissioner of Police for the Metropolis v Keohane]() UKEAT/0463/12/RN.

Background
An ET found that a Police dog handler, one of whose two narcotics Police dogs was removed from her when she told the force she was pregnant, had suffered a detriment by being exposed to a risk that on her return to work she would suffer financial loss and  career disadvantage. Being a dog handler enhanced the Claimant's career prospects and gave her an opportunity to earn overtime.

The Metropolitan Police operated a policy relating to the "retention, re-allocation or withdrawal of police dogs where handlers were sick, were performing recuperative or restricted duties, were pregnant or on maternity leave, or were suspended from operational duties.

The ET held that the reason for the removal of the dog from the Claimant and the subsequent failure to re-allocate the dog to her before the end of her maternity leave, was because of her pregnancy and maternity and was directly discriminatory. The ET rejected a complaint that the application of the policy was itself indirectly discriminatory. The ET's reasoning was that actual applications of the policy in pregnancy cases may well amount to direct discrimination. However, whilst superficially the circumstances met the requirements for indirect discrimination, the policy only amounted to potential discrimination, because it did not uniformly result in a re-allocation of the dog to another handler.

Legal issues
Did the words 'because of' in Section 18 of the EA, have a broad, rather than a narrow meaning? The police argued that the phrase "because of" was a narrow one. This construction meant it had to be established that the alleged discriminator was motivated by the fact of pregnancy or maternity, or there had to be a direct causal connection between the pregnancy and the decision, as opposed to pregnancy merely being the context of what had occurred.

The EAT considered that in the present case, it made no difference as to whether the narrow or a broader approach was used, because even on the Police's own argument (contending for the narrow interpretation), the ET had been satisfied that there was a direct causal connection between the pregnancy and the discriminatory decision. If the ET would have reached the result it did on the application of the Police approach, it would undoubtedly have reached the same result by applying the broader approach i.e. where the words "because of" meant that the decision in question only had to be "related to" the Claimant's pregnancy or be a "significant influence" in relation to the discriminatory act.

Indirect discrimination
In the Claimant's cross-appeal, the Claimant complained that the ET appeared to say that the Claimant would succeed at best only once and that, if direct pregnancy / maternity discrimination succeeded, it would only consider a claim for indirect sex discrimination in the alternative. Yet the pregnancy case was based upon pregnancy discrimination; the indirect discrimination case was not.

The reason why the ET concluded that there was no indirect discrimination was that the policy only amounted to potential discrimination, because it does not uniformly result in reallocation of the dog.

The Claimant contended that a risk of disadvantage was itself capable of being a detriment. The EAT agreed: being exposed to a risk that one's police dog might be re-allocated, was sufficient to constitute a detriment. However, it was only where the consequence of that disadvantage was "neither automatic nor inevitable", that indirect discrimination could come into play at all. If such disadvantage did materialise, and applied disproportionately in respect of one gender, then the basis for a finding of indirect discrimination was laid.

Although the Claimant sought no greater compensation in respect of her claim for indirect discrimination than that for direct discrimination, the appeal in respect of the finding of indirect discrimination had to succeed. However, the EAT could not reverse the conclusion, since it remained open for the Police to show that the policy was entirely justified, which issue was remitted to the ET.

Time limits
Did allegations of unwanted sexual conduct and a ban on speaking Polish at work constitute a series of continuing events in terms of the time limit for bringing discrimination claims? These issues were considered in [Exec Catering Ltd & Anor v Kaczynska]() UKEAT/0182/13/JOJ where an ET upheld a claim of racial harassment (based on a ban on speaking Polish to other staff), but dismissed a complaint of sexual harassment on the ground that it was time-barred.

There were various incidents which it was claimed amounted to sexual harassment:

* the "baguette incident" when the Claimant asked a Mr C (a named Respondent in the proceedings who ran and operated the café where the Claimant worked), whether he wanted a baguette for his lunch and he said it looked like the baguette had an erection; * the "cucumber incident"; and * the "builder's bum" incident.

The Claimant also alleged that she had seen Mr C watching pornography on the computer in his office and that it had occurred a few times per week, including the week leading up to her resignation.

Race claim time limit
The café appealed on the basis that the ET had failed to consider if the claim for racial harassment was lodged out of time and, if so, whether it would be just and equitable to extend time.

The café alleged that because the last person who could have spoken Polish with the Claimant left more than 3 months before the ET claim was made, the claim was out of time (because there would have been no other staff with whom the Claimant could speak Polish). The Claimant contended that the departure of co-workers was immaterial because the ban on speaking Polish was never lifted and thus there was a continuing state of affairs until the Claimant's resignation and so the claim made within 3 months of that date was within time.

The EAT rejected the café's argument that the EAT should find that the race claim was out of time and that time should not be extended. It was accepted that there was no reference as such by the ET to the limitation point in connection with the racial harassment claim. It was therefore not clear whether or not the ET considered the ban could amount to a continuing act. Further, even if it was, it could not be inferred that the ban had continued until the Claimant's resignation (which she said gave rise to a constructive dismissal claim).

Therefore, it was necessary to remit the race claim to the same ET to determine:

* whether there was a continuing act; and, * if so, whether it continued up until the Claimant's resignation or ended at some earlier date. * if it was at some earlier date outside the three-month primary limitation period, then the question arose as to whether it would be just and equitable to extend time for that claim.

Sex claim time limit?
The Claimant cross-appealed against a finding that her sex discrimination claim was out of time.

The ET had not been satisfied that the Claimant was subjected to a series of incidents that together could amount to a continuous state of affairs, meaning that her sex discrimination claim had been brought in time. Rather, the ET thought that there were a number of isolated incidents which were out of time. Nor was it just and equitable to extend the time limit.

The Claimant's first point at the EAT was that ET had fallen into error in disregarding her pornography complaint on the basis that Mr C did not intend that staff should see the pornography in his office. The Claimant's submission was that intention was irrelevant and that sexual harassment continued right up until the Claimant's resignation date.

The EAT agreed that under the Equality Act 2010, the question was whether the conduct at the café had either the purpose or the effect of creating a sexualised work environment adverse to the Claimant. Lack of intention was not, of itself, an answer to the complaint. More generally, the question was whether the Claimant was subjectively offended by her exposure to pornography and, if so, whether that was a reasonable reaction on her part.

Alternatively, the EAT considered that bearing mind the "builder's bum" and "baguette" incidents, the ET failed to consider whether, on the facts as found by them, there was a sexualised work environment which persisted, giving rise to a continuing state of affairs for time limitation purposes, rather than treating them as isolated incidents. This is because if an act extends over a period, it is treated as having been done at the end of that period; whereas, in the case of an isolated act, time runs from when that act was done. The correct approach was as determined by the Court of Appeal in the leading case of Hendricks v Commissioner of Police for the Metropolis [2003] IRLR 96.

Decision
The EAT decided that the proper course was to remit the sex claim back to the same Employment Tribunal for re-consideration. In relation to the sexual harassment claim, the ET should take the structured three-step approach advocated in Richmond Pharmacology v Dhaliwal [2009] IRLR 336. These steps were to consider:

(i) whether the employer engaged in unwanted conduct;

(ii) whether the conduct had (a) the purpose or (b) the effect of either violating the Claimant's dignity or creating an adverse environment for her; and

(iii) whether the conduct was, on the grounds of her sex.

Answers to these questions would then enable the ET to determine the relevant time limit by considering:

(a) whether or not the viewing of pornography amounted to sexual harassment and, if so, whether that state of affairs, coupled with the two earlier incidents amounted to a continuing act; and,

(b) if so, when that continuing act terminated.

The ET could then decide:

* whether or not there was actionable sexual harassment; and, * whether or not that claim was in time; and, * if not, the question of whether it would be just and equitable to extend time for bringing the claim.

Both the appeal and the cross appeal were allowed and so the sex and race claims were remitted to the ET for reconsideration accordingly.

Mark Shulman is a Consultant Solicitor with Keystone Law and an accredited workplace and employment mediator.