61997CC0185_EN
Opinion of the Advocate-General
Opinion of the Advocate-General
1 In proceedings between Mrs Coote and Granada Hospitality Ltd, the Employment Appeal Tribunal has referred the following questions to the Court for a preliminary ruling:
`(1) Does Council Directive 76/207/EEC of 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 (1) require Member States to introduce into their national legal systems such measures as are necessary to enable a complainant to pursue a claim by judicial process where the following circumstances apply:
(i) the complainant was employed by the respondent;
(ii) during her employment, the complainant brought a claim of sex discrimination against the respondent which was compromised;
(iii) following the end of her employment, the complainant has made efforts to find full-time work, but has been unsuccessful;
(iv) the respondent has caused or contributed to the complainant's difficulties in finding work by refusing to provide references to potential employers when requested to do so;
(v) the employer's decision to refuse to provide references was taken after the end of the complainant's employment;
(vi) the reason, or a principal reason, for the employer's decision to refuse to provide a reference to the complainant was that she had previously brought a claim of sex discrimination against the respondent?
(2) Does Council Directive 76/207/EEC 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 require Member States to introduce into their national legal systems such measures as are necessary to enable persons to pursue a claim by judicial process where the circumstances set out under 1 above apply, save that:
(i) the respondent's decision to refuse to provide a reference was taken before the termination of the complainant's employment; but
(ii) the actual refusal or refusals to provide a reference took place after the termination of the complainant's employment?'
2 In short, the Employment Appeal Tribunal thus seeks to ascertain whether, on the basis of Directive 76/207 (`the Directive'), Member States are obliged to introduce the measures necessary to allow a worker to bring proceedings against a former employer, if the worker considers that the motive for the employer's refusal to provide references of use in seeking new employment is that the employer resents having been made the defendant in sex discrimination proceedings brought by the worker.
3 That question from the Employment Appeal Tribunal requires the Court to look once again at legislation with which it is familiar, as may be seen from the abundant case-law on that legislation.
Such familiarity does not mean, however, that the answer is obvious, especially as an examination of the reasons for the reference shows that the tribunal's questions in fact cover two points, which I consider it necessary to distinguish.
I therefore find it useful to start by summarising the essential facts of the proceedings before the national tribunal.
The main proceedings and national law
4 Mrs Coote was employed by Granada Hospitality Ltd (`Granada') from December 1992 to September 1993.
In 1993 she brought proceedings alleging sex discrimination on the ground that she had been dismissed because of pregnancy. Those proceedings ended with a settlement between Mrs Coote and her former employer.
In July 1994 Mrs Coote tried to find a new job through employment agencies.
Her return to the employment market ran up against difficulties which she attributes to a refusal by her former employer to provide a reference to one of the employment agencies; Granada denies this.
Mrs Coote then brought proceedings in the Industrial Tribunal, arguing that she had been wronged by Granada's refusal to provide references.
The proceedings were dismissed, the Industrial Tribunal holding that it had no jurisdiction because the alleged discrimination complained of by Mrs Coote, assuming it to be proved, had taken place after the end of the employment relationship.
5 At this stage it is necessary to consider the provisions of United Kingdom law on the prohibition of all discrimination against workers on grounds of their sex, and on the way in which those provisions have been interpreted by the national courts.
It is a feature of section 4 of the Sex Discrimination Act that any less favourable treatment by an employer of an employee because the latter has brought proceedings alleging sex discrimination is to be treated in all respects as sex discrimination.
In other words, retaliation by an employer against an employee who has relied on the prohibition of discrimination on grounds of sex is itself regarded as an infringement of that prohibition.
6 This is clearly a provision which gives a high level of protection.
It ensures, by guaranteeing impunity, that anyone who has dared to brave an employer's wrath by alleging discrimination on grounds of sex will not repent that boldness.
It is likely, moreover, to dissuade employers from succumbing to the temptation to retaliate. In view of that provision of national law, Mrs Coote should, assuming it to be established that Granada had refused to give references and that its refusal constituted retaliation, have been able to succeed in her claim, and the tribunal would not have had to consider the interpretation of the Directive.
The reason why that was not so is that the national tribunal was faced with a problem of the scope ratione temporis of the Sex Discrimination Act.
That act, like the Race Relations Act which prohibits race discrimination, has been interpreted by the courts in the United Kingdom as not applying to discrimination by an employer against a former employee. Mrs Coote, who was dismissed in 1993, was therefore prevented from relying on the Sex Discrimination Act to bring proceedings in 1994.
And because it is uncertain whether the Directive has been properly implemented by a national law which prohibits discrimination only on the commencement and during the course of the employment relationship, and allows the employee to bring court proceedings only when the discrimination falls within that context, the national tribunal has sought a preliminary ruling.
7 The wording of the questions referred to the Court confirms that the scope ratione temporis of the prohibitions which the national legislature must lay down in order to implement the Directive is central to the dispute before the national tribunal.
Those questions, although they relate solely to a situation in which the reference was in fact refused after the termination of the employment, distinguish between the alternative possibilities that the employer's decision to refuse to provide references was taken before or after the termination of the employment of the person in need of the reference.
Does the provision of references fall within the scope of the Directive?
8 If the Court is to provide the national tribunal with an answer that genuinely deals with its concerns, it must first, I consider, address the question whether the provision of references falls within the scope of the Directive.
I myself am convinced that it does, although I do not necessarily agree with everything the Commission has said on that point in its observations.
9 The Commission submits that the provision of references falls within the scope of both Article 3 and Article 5 of the Directive.
10 Article 3(1), it will be remembered, provides: `Application of the principle of equal treatment means that there shall be no discrimination whatsoever on grounds of sex in the conditions, including selection criteria, for access to all jobs or posts, whatever the sector or branch of activity, and to all levels of the occupational hierarchy'.
The Commission argues, on the basis of Meyers, (2) that, since it facilitates access to employment, the provision of references falls within that definition.
11 My own view is that, to be brought into play here, Article 3 would have to be given an interpretation that is not only highly creative but also of questionable expediency, since it is not necessary in order to bring the provision of references within the scope of the Directive. One is, I feel, on much surer ground if one brings the provision of references within the scope of Article 5 of the Directive, which concerns working conditions, including those governing dismissal.
12 No one would deny that an employer's appraisal of the quality of the services rendered - and it is this that is the point in the case of a reference which may assist in finding new employment - falls entirely within the scope of the relationship between employee and employer.
Whilst I would not go so far as to claim that it constitutes, as it were, an appurtenance of salary, in that the employee is entitled, in exchange for good and loyal service, to both a pecuniary reward and an intangible reward in the form of praise, I do consider that the service rendered by the employer in providing the employee with the parting gift of a reference cannot be severed from the employment relationship, and certainly not from the conditions governing dismissal which, as is clear from the judgment in Burton, (3) are to be construed broadly.
Does the protection afforded by the Directive cease with the termination of the employment relationship?
13 The moment at which the employer takes the decision whether to provide references is, I consider, irrelevant in the context of Article 5.
Whilst it is true that in most cases references are provided after the termination of the employment relationship - following resignation or dismissal - it is by no means impossible for that to happen during the period of the contract of employment.
A simple example would be that of an employee whose spouse has found a new job in another area, or has been transferred without change of employment to a new posting in another area, and who therefore, in preparation for his or her own move to that area, has begun to explore the employment market there.
Such an employee will undoubtedly ask his or her present employer to provide references for any prospective employers.
14 It would be totally unjustifiable for the application of the prohibition of discrimination on grounds of sex to a decision on the provision or refusal of references to depend on the moment when that decision was taken, or when it became effective by the actual provision of, or explicit refusal to provide, a reference.
Other than in the situation referred to above, in which the employee makes advance plans to change employer, the moment when a reference is really needed is when, following the termination of the contract of employment, the employee sets out to look for another job.
It would be particularly inappropriate and wholly contrary to the spirit of the Directive for the employee to be deprived at that moment of the protection which the Directive is intended to afford, on the ground that the discrimination is the work of a former employer with whom there is no longer any contractual relationship.
It may be borne in mind here that Article 3 of the Directive seeks to protect workers against any intended discrimination on the part of prospective employers with whom, by definition, they as yet have no contractual relationship.
15 The Court has, moreover, always held with regard to equal pay that the prohibition of discrimination by an employer between employees on grounds of sex does not cease to have effect on termination of the contract of employment.
A particularly clear instance is the Kowalska judgment, (4) in which the Court held that Article 119 of the Treaty was applicable to benefits paid after the termination of the employment relationship.
There could be no justification for taking a different course with the Equal Treatment Directive.
16 I therefore consider that an employer may not discriminate on grounds of sex when providing an employee with references, whatever the moment - whether during or after the period of the employment relationship - at which the decision is taken in that regard or at which those references are requested.
17 I shall add three qualifications, however, to dispel any misunderstanding.
The first is that the prohibition of discrimination in cases where the employer provides references obviously in no way prejudges the question of the existence of an obligation to provide references.
As the Commission accepts, the Directive itself does not create any such obligation.
In other words, it is only where the employer is required by law or by an express or implied term of the contract to provide references, or in practice habitually accedes to requests for references, that the principle of equal treatment must be observed.
18 But, as was already stressed in the judgment in Garland, (5) concerning travel facilities provided by an employer to former employees in the absence of any contractual obligation, there can be no question of exempting employers from the duty to respect the principle of equal treatment when they grant benefits to their employees on a strictly voluntary basis, since the ban on any discrimination on grounds of sex applies throughout the whole area covered by the employment relationship.
19 To cover all eventualities, I should add that, where an employer has only one employee, a refusal to provide that employee with references on the ground of his or her sex would still be in breach of the prohibition of discrimination on grounds of sex.
20 Secondly, it must be made clear that the fact that the provision of references for former employees falls within the scope of the Directive in no way interferes with any rules of national law concerning the extent of the employer's obligation to provide such references - for example, a rule limiting that obligation, for practical reasons, to a specific period by providing, say, that the right to obtain references may be exercised only during the first year following the termination of the employment relationship.
21 The third and final qualification is that the employer remains entirely unfettered as regards the assessment to be made of the quality of the services rendered, provided that it remains within the limits imposed by the duty of objectivity.
22 Were it merely a matter of dispelling the national tribunal's doubts as to the scope ratione temporis of the prohibition of discrimination on grounds of sex laid down by the Directive, I could conclude my reasoning at this point, having reached the view that the provision of references to an employee - which falls within the scope of the Directive as defined in Article 5 - remains subject to that prohibition whatever the moment - whether during or after the period of the employment relationship - at which it occurs.
But the formulation of the national tribunal's question does not allow me to do so, highlighting as it does the circumstance that the refusal to provide references may have constituted retaliation for court proceedings brought by the former employee with a view to enforcing compliance with the principle of equal treatment and asking whether, in such an event, the Member States are required to introduce into their legal systems such measures as are necessary to enable employees who consider themselves wronged to pursue their claims by judicial process.
Refusal to provide references as a measure of retaliation
23 In other words, does the requirement to provide judicial remedies imposed by Article 6 of the Directive also apply in cases where the employee claims to have suffered not discrimination on grounds of sex but rather retaliation for having exercised the right to bring proceedings challenging alleged discrimination on grounds of sex?
24 The answer to that question can only, in my view, be no. It is clear from a reading of the provisions of the Directive that the Community legislature, whilst perfectly aware that claims for sexual equality may irritate certain employers to the point of prompting them to engage in reprisals, intentionally took account of only one form of retaliation, the most serious but perhaps not the least common - dismissal.
25 That intention was expressed in Article 7 of the Directive, under which: `Member States shall take the necessary measures to protect employees against dismissal 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'.
26 One may think that, in not requiring Member States to provide protection against other forms of retaliation to which employers, outraged at having had to answer in court for their conduct with regard to the prohibition of discrimination on grounds of sex, might be tempted to have recourse, the Community legislature has demonstrated a certain timorousness.
27 It is not, however, possible, by any legal reasoning constructed on the basis of such a view and of the regrets which may justifiably be felt as a result, to derive from the Directive obligations on the Member States which it does not contain.
28 A measure of retaliation other than dismissal does not give rise to any right to bring legal proceedings unless, of course, it transpires that the employer's recourse to retaliation was based on the sex of the employee who has had the effrontery to claim the right to equal treatment.
29 In such a case, the discrimination would again be based directly on sex, in the context of the employment relationship, and Article 6 of the Directive would be applicable.
30 Unfortunately for her, however, that does not appear to be Mrs Coote's situation, or at any rate she has not stated that her former employer's reprisals are aimed selectively at women only.
31 I readily agree that, but for Article 7 - which, as the United Kingdom Government very rightly points out, is the expression of a clear political choice - one might properly have wondered whether Article 6 should not be interpreted as requiring not only that, as the Court held in Von Colson and Kamann, (6) the legal proceedings must provide employees having suffered discrimination with an effective remedy but also that the pursuit of that remedy must not be capable of giving rise to reprisals.
32 Such a line of reasoning would have tallied with the richly-promising seam of case-law which has recourse to the concept of `effet utile'.
It would have been possible to consider that the effectiveness of the right to bring proceedings laid down by Article 6 would be significantly strengthened were no threat of retaliation to hang over the bold complainant's head, and to conclude that the Member States were under a duty to make a remedy available to any victim of such retaliation.
But the presence of Article 7 leaves, in my view, no scope for any such construction.
33 Nor is there scope for any interpretation whereby retaliation might constitute indirect discrimination on grounds of sex within the meaning of Article 2 of the Directive, paragraph 1 of which provides: `For the purposes of the following provisions, the principle of equal treatment shall mean that there shall be no discrimination whatsoever on grounds of sex either directly or indirectly by reference in particular to marital or family status'.
34 It is clear to me that the use of the word `indirectly' in that article refers to a situation in which, although a particular rule or measure may not be explicitly directed at employees of a particular sex, it is in fact possible to pierce the veil of appearances and identify with certainty the sex in question.
35 The addition of the words `by reference in particular to marital or family status' seems to me to leave no possible room for doubt in that regard.
But it does not appear that Mrs Coote's situation is of that kind.
The questions on which a ruling is sought stress that if the references have in fact been refused, it is because she brought proceedings against her employer and not because she is a woman.
36 It is not therefore possible to consider that the Directive requires Member States to introduce into their national legal systems such measures as are necessary to enable employees who consider themselves wronged to pursue their claims in circumstances such as those of the - clearly morally blameworthy - conduct alleged against Mrs Coote's former employer.
Conclusion
37 I propose, finally, that the Court should phrase its answer to the questions on which the Employment Appeal Tribunal seeks a preliminary ruling as follows:
(1) The provision of references for employees by an employer is covered by the prohibition of any discrimination on grounds of sex laid down by Council Directive 76/207/EEC of 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.
In that connection, it is irrelevant
- whether the references were in fact refused during the period of employment or after its termination, or
- whether the employer decided on the refusal before or after the termination of the period of employment.
(2) Directive 76/207 does not, however, require Member States to introduce into their national legal systems such measures as are necessary to enable employees to bring legal proceedings against former employers who have refused to provide references for them, where that refusal constitutes retaliation for legal proceedings brought by the employee against the employer with a view to enforcing compliance with the requirement of equal treatment for men and women.
(1) - OJ 1976 L 39, p. 40.
(2) - Case C-116/94 Meyers v Adjudication Officer [1995] ECR I-2131.
(3) - Case 19/81 Burton v British Railways Board [1982] ECR 555, paragraph 9.
(4) - Case C-33/89 Kowalska v Freie und Hansestadt Hamburg [1990] ECR I-2591.
(5) - Case 12/81 Garland v British Rail Engineering [1982] ECR 359.
(6) - Case 14/83 Von Colson and Kamann v Land Nordrhein-Westfalen [1984] ECR 1891.
`It follows from [Article 6] that Member States are required to adopt measures which are sufficiently effective to achieve the objective of the directive and to ensure that those measures may in fact be relied on before the national courts by the persons concerned' (paragraph 18).