C-185/97
ECLI:EU:C:1998:163
- Súd
- Súdny dvor Európskej únie
- IČS
- 61997CC0185
- Zdroj
- eur-lex.europa.eu ↗
COOTE v GRANADA HOSPITALITY
OPINION OF ADVOCATE GENERAL MISCHO delivered on 2 April 1998 *
1. In proceedings between Mrs Coote and crimination against the respondent Granada Hospitality Ltd, the Employment which was compromised; Appeal Tribunal has referred the following questions to the Court for a preliminary ruling:
(iii) following the end of her employment, the complainant has made efforts to find full-time work, but has been '(1) Does Council Directive 76/207/EEC of unsuccessful; 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and pro- motion, and working conditions 1 require Member States to introduce into their national legal systems such measures as (iv) the respondent has caused or contrib- are necessary to enable a complainant to uted to the complainant's difficulties pursue a claim by judicial process where in finding 'work by refusing to pro- the following circumstances apply: vide references to potential employers when requested to do so;
(i) the complainant was employed by the (v) the employer's decision to refuse t o respondent; provide references was taken after the end of the complainant's employment;
(ii) during her employment, the com- (vi) the reason, or a principal reason, for plainant brought a claim of sex dis- the employer's decision to refuse t o provide a reference to the complainant was that she had previously brought * Original language: French. a claim of sex discrimination against 1 — OJ 1976 L 39, p. 40. the respondent?
OPINION OF MR MISCHO — CASE C-185/97
(2) Does Council Directive 76/207/EEC on dant in sex discrimination proceedings brought the implementation of the principle of by the worker. equal treatment for men and 'women as regards access to employment, vocational training and promotion, and working con- ditions require Member States to intro- duce into their national legal systems such measures as are necessary to enable per- sons to pursue a claim by judicial process 3. That question from the Employment where the circumstances set out under 1 Appeal Tribunal requires the Court to look above apply, save that: 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 tri- bunal's questions in fact cover two points, which I consider it necessary to distinguish. I (i) the respondent's decision to refuse to therefore find it useful to start by summa- provide a reference was taken before rising the essential facts of the proceedings the termination of the complainant's before the national tribunal. employment; but
The main proceedings and national law
(ii) the actual refusal or refusals to pro- vide a reference took place after the termination of the complainant's employment?' 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 2. In short, the Employment Appeal Tribunal of pregnancy. Those proceedings ended with thus seeks to ascertain whether, on the basis a settlement between Mrs Coote and her of Directive 76/207 ('the Directive'), Member former employer. In July 1994 Mrs Coote States are obliged to introduce the measures tried to find a new job through employment necessary to allow a worker to bring pro- agencies. Her return to the employment ceedings against a former employer, if the market ran up against difficulties which she worker considers that the motive for the attributes to a refusal by her former employer employer's refusal to provide references of to provide a reference to one of the employ- use in seeking new employment is that the ment agencies; Granada denies this. Mrs Coote employer resents having been made the defen- then brought proceedings in the Industrial
I - 5202
COOTE v GRANADA HOSPITALITY
Tribunal, arguing that she had been wronged sion of national law, Mrs Coote should, by Granada's refusal to provide references. assuming it to be established that Granada The proceedings were dismissed, the Indus- had refused to give references and that its trial Tribunal holding that it had no jurisdic- refusal constituted retaliation, have been able tion because the alleged discrimination com- to succeed in her claim, and the tribunal plained of by Mrs Coote, assuming it to be would not have had to consider the interpre- proved, had taken place after the end of the tation of the Directive. The reason why that employment relationship. 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 pro- hibits race discrimination, has been inter- preted 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 there- 5. At this stage it is necessary to consider the fore prevented from relying on the Sex Dis- provisions of United Kingdom law on the crimination Act to bring proceedings in 1994. prohibition of all discrimination against And because it is uncertain whether the Direc- workers on grounds of their sex, and on the tive has been properly implemented by a way in which those provisions have been national law which prohibits discrimination interpreted by the national courts. It is a fea- only on the commencement and during the ture of section 4 of the Sex Discrimination course of the employment relationship, and Act that any less favourable treatment by an allows the employee to bring court proceed- employer of an employee because the latter ings only when the discrimination falls within has brought proceedings alleging sex discrimi- that context, the national tribunal has sought nation is to be treated in all respects as sex a preliminary ruling. 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 infringe- ment of that prohibition.
7. The wording of the questions referred to the Court confirms that the scope ratione 6. This is clearly a provision which gives a temporis of the prohibitions which the national high level of protection. It ensures, by guar- legislature must lay down in order to imple- anteeing impunity, that anyone who has dared ment the Directive is central to the dispute to brave an employer's wrath by alleging dis- before the national tribunal. Those questions, crimination on grounds of sex will not repent although they relate solely to a situation in that boldness. It is likely, moreover, to dis- which the reference was in fact refused after suade employers from succumbing to the the termination of the employment, distin- temptation to retaliate. In view of that provi- guish between the alternative possibilities that
I - 5203
OPINION OF MR MISCHO — CASE C-185/97
the employer's decision to refuse to provide or branch of activity, and to all levels of the references was taken before or after the ter- occupational hierarchy'. The Commission mination of the employment of the person in argues, on the basis of Meyers, 2 that, since it need of the reference. facilitates access to employment, the provi- sion of references falls within that definition.
Does the provision of references fall within the scope of the Directive?
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 cre- ative but also of questionable expediency, since it is not necessary in order to bring the provision of references within the scope of 8. If the Court is to provide the national tri- the Directive. One is, I feel, on much surer bunal with an answer that genuinely deals ground if one brings the provision of refer- with its concerns, it must first, I consider, ences within the scope of Article 5 of the address the question whether the provision of Directive, which concerns working condi- references falls within the scope of the Direc- tions, including those governing dismissal. tive. I myself am convinced that it does, although I do not necessarily agree with every- thing the Commission has said on that point in its observations.
12. No one would deny that an employer's appraisal of the quality of the services ren- dered — and it is this that is the point in the 9. The Commission submits that the provi- case of a reference which may assist in finding sion of references falls within the scope of new employment — falls entirely within the both Article 3 and Article 5 of the Directive. 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 10. Article 3(1), it will be remembered, pro- consider that the service rendered by the vides: 'Application of the principle of equal employer in providing the employee with the treatment means that there shall be no dis- crimination whatsoever on grounds of sex in the conditions, including selection criteria, for 2 — Case C-116/94 Meyers v Adjudication Officer [1995] ECR access to all jobs or posts, whatever the sector I-2131.
I - 5204
COOTE v GRANADA HOSPITALITY
parting gift of a reference cannot be severed 14. It would be totally unjustifiable for the from the employment relationship, and cer- application of the prohibition of discrimi- tainly not from the conditions governing dis- nation on grounds of sex to a decision on the missal which, as is clear from the judgment in provision or refusal of references to depend Burton, 3 are to be construed broadly. on the moment when that decision was taken, or when it became effective by the actual pro- vision of, or explicit refusal to provide, a ref- erence. Other than in the situation referred t o 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 employ- ment, the employee sets out to look for another job. It would be particularly inap- propriate and wholly contrary to the spirit of Does the protection afforded by the Direc- the Directive for the employee to be deprived tive cease with the termination of the employ- at that moment of the protection 'which the ment relationship? 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 dis- crimination on the part of prospective employers with whom, by definition, they as 13. The moment at which the employer takes yet have no contractual relationship. the decision whether to provide references is, I consider, irrelevant in the context of Article 5. Whilst it is true that in most cases refer- ences are provided after the termination of the employment relationship — following res- ignation or dismissal — it is by no means impossible for that to happen during the 15. The Court has, moreover, always held period of the contract of employment. A with regard to equal pay that the prohibition simple example would be that of an employee of discrimination by an employer between whose spouse has found a new job in another employees on grounds of sex does not cease area, or has been transferred without change to have effect on termination of the contract of employment to a new posting in another of employment. A particularly clear instance area, and who therefore, in preparation for is the Kowalska judgment, 4 in which the his or her own move to that area, has begun Court held that Article 119 of the Treaty was to explore the employment market there. Such applicable to benefits paid after the termina- an employee will undoubtedly ask his or her tion of the employment relationship. There present employer to provide references for could be no justification for taking a different any prospective employers. course with the Equal Treatment Directive.
3 — Case 19/81 Burton v British Railways Board [1982] ECR 555, 4 — Case C-33/89 Kowalska v Freie und Hansestadt Hamburg paragraph 9. [1990] ECR I-2591.
I - 5205
OPINION OF MR MISCHO — CASE C-185/97
16. I therefore consider that an employer may whole area covered by the employment rela- not discriminate on grounds of sex when tionship. providing an employee with references, what- ever 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. 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 prohibi- tion of discrimination on grounds of sex. 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 obvi- ously in no way prejudges the question of the 20. Secondly, it must be made clear that the existence of an obligation to provide refer- fact that the provision of references for former ences. As the Commission accepts, the Direc- employees falls within the scope of the Direc- tive itself does not create any such obligation. tive in no way interferes with any rules of In other words, it is only where the employer national law concerning the extent of the is required by law or by an express or implied employer's obligation to provide such refer- term of the contract to provide references, or ences — for example, a rule limiting that in practice habitually accedes to requests for obligation, for practical reasons, to a specific references, that the principle of equal treat- period by providing, say, that the right to ment must be observed. obtain references may be exercised only during the first year following the termination of the employment relationship.
18. But, as was already stressed in the judg- ment in Garland, 5 concerning travel facilities 21. The third and final qualification is that provided by an employer to former employees the employer remains entirely unfettered as in the absence of any contractual obligation, regards the assessment to be made of the there can be no question of exempting quality of the services rendered, provided that employers from the duty to respect the prin- it remains within the limits imposed by the ciple of equal treatment when they grant ben- duty of objectivity. efits to their employees on a strictly volun- tary basis, since the ban on any discrimination on grounds of sex applies throughout the
5 — Case 12/81 Garland v British Rail Engineering [1982] ECR 22. Were it merely a matter of dispelling the 359. national tribunal's doubts as to the scope
I - 5206
COOTE v GRANADA HOSPITALITY
ratione temporis of the prohibition of dis- 24. The answer to that question can only, in crimination on grounds of sex laid down by my view, be no. It is clear from a reading of the Directive, I could conclude my reasoning the provisions of the Directive that the Com- at this point, having reached the view that the munity legislature, whilst perfectly aware that provision of references to an employee — claims for sexual equality may irritate certain which falls within the scope of the Directive employers to the point of prompting them to as defined in Article 5 — remains subject to engage in reprisals, intentionally took account that prohibition whatever the moment — of only one form of retaliation, the most whether during or after the period of the serious but perhaps not the least common — employment relationship — at which it occurs. dismissal. But the formulation of the national tribunal's question does not allow me to do so, high- lighting as it does the circumstance that the refusal to provide references may have con- stituted retaliation for court proceedings brought by the former employee with a view to enforcing compliance with the principle of 25. That intention was expressed in Article 7 equal treatment and asking whether, in such of the Directive, under which: 'Member States an event, the Member States are required to shall take the necessary measures to protect introduce into their legal systems such mea- employees against dismissal by the employer sures as are necessary to enable employees as a reaction to a complaint within the under- who consider themselves 'wronged to pursue taking or to any legal proceedings aimed at their claims by judicial process. enforcing compliance with the principle of equal treatment'.
Refusal to provide references as a measure of 26. One may think that, in not requiring retaliation 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 timo- rousness. 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 dis- crimination on grounds of sex but rather retaliation for having exercised the right to bring proceedings challenging alleged dis- 27. It is not, however, possible, by any legal crimination on grounds of sex? reasoning constructed on the basis of such a
I - 5207
OPINION OF MR MISCHO — CASE C-185/97
view and of the regrets which may justifiably have wondered whether Article 6 should not be felt as a result, to derive from the Direc- be interpreted as requiring not only that, as tive obligations on the Member States which the Court held in Von Cohort and Kamann, 6 it does not contain. the legal proceedings must provide employees having suffered discrimination with an effec- tive remedy but also that the pursuit of that remedy must not be capable of giving rise to reprisals.
28. A measure of retaliation other than dis- missal does not give rise to any right to bring legal proceedings unless, of course, it tran- spires that the employer's recourse to retali- 32. Such a line of reasoning would have tal- ation was based on the sex of the employee lied with the richly-promising seam of who has had the effrontery to claim the right case-law which has recourse to the concept of to equal treatment. '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 29. In such a case, the discrimination would remedy available to any victim of such retali- again be based directly on sex, in the context ation. But the presence of Article 7 leaves, in of the employment relationship, and Article my view, no scope for any such construction. 6 of the Directive would be applicable.
33. Nor is there scope for any interpretation whereby retaliation might constitute indirect 30. Unfortunately for her, however, that does discrimination on grounds of sex within the not appear to be Mrs Coote's situation, or at meaning of Article 2 of the Directive, para- any rate she has not stated that her former graph 1 of which provides: 'For the purposes employer's reprisals are aimed selectively at of the following provisions, the principle of women only. 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'.
31. I readily agree that, but for Article 7 — 6 — Case 14/83 Von Cohort and Kamann v Land Nordrhem- Westfalm [1984] ECR 1891. 'It follows from [Article 6] that which, as the United Kingdom Government Member States are required to adopt measures which are suf- very rightly points out, is the expression of a ficiently effective to achieve the objective of the directive and to ensure that those measures may in fact be relied on before clear political choice — one might properly the national courts by the persons concerned' (paragraph 18).
I - 5208
COOTE v GRANADA HOSPITALITY
34. It is clear to me that the use of the word if the references have in fact been refused, it 'indirectly' in that article refers to a situation is because she brought proceedings against in which, although a particular rule or measure her employer and not because she is a 'woman. 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. 36. It is not therefore possible to consider that the Directive requires Member States t o introduce into their national legal systems 35. The addition of the words 'by reference such measures as are necessary to enable in particular to marital or family status' seems employees who consider themselves wronged to me to leave no possible room for doubt in to pursue their claims in circumstances such that regard. But it does not appear that Mrs as those of the — clearly morally blame- Coote's situation is of that kind. The ques- worthy — conduct alleged against Mrs Coote's tions on which a ruling is sought stress that former employer.
Conclusion
37. I p r o p o s e , finally, that the C o u r t should phrase its answer t o the questions o n w h i c h the E m p l o y m e n t Appeal Tribunal seeks a preliminary ruling as follows:
(1) T h e p r o v i s i o n of references for e m p l o y e e s b y an e m p l o y e r is covered b y t h e p r o h i b i t i o n of any discrimination o n g r o u n d s of sex laid d o w n b y C o u n c i l Directive 7 6 / 2 0 7 / E E C of 9 F e b r u a r y 1976 o n the i m p l e m e n t a t i o n of t h e p r i n - ciple of equal t r e a t m e n t for m e n a n d w o m e n as regards access t o e m p l o y m e n t , vocational training and p r o m o t i o n , a n d w o r k i n g c o n d i t i o n s . In t h a t c o n n e c - tion, it is irrelevant
— w h e t h e r t h e references w e r e in fact refused d u r i n g the p e r i o d of e m p l o y - m e n t o r after its t e r m i n a t i o n , o r
— w h e t h e r t h e e m p l o y e r decided o n the refusal before or after t h e t e r m i n a - tion of the p e r i o d of e m p l o y m e n t .
I - 5209
OPINION OF MR MISCHO — CASE C-185/97
(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 pro- vide references for them, where that refusal constitutes retaliation for legal pro- ceedings brought by the employee against the employer with a view to enforcing compliance with the requirement of equal treatment for men and women.
I-5210