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Issue 80 (June/July 2003)

Contents

It's not all over
Paying for all the damage
On the move
One man and his job: it's still about Schmidt
Holidays are here again: roundup of recent cases
Worker status: it's a jungle out there
Employer's belief  

It's not all over

Relaxion Group plc v Rhys Harper and five other cases (Times Law Report 23/6/03)

It has long been a bone of contention that the protection of anti-discrimination legislation ends the second a worker is no longer employed. European law was used to plug part of the gap in sex discrimination cases, but was of no benefit to claims of race and disability discrimination.

Now the House of Lords has ruled in these six appeals that the Employment Tribunal has jurisdiction to hear complaints of discrimination by employees made against employers under the Sex Discrimination Act 1975, Race Relations Act 1976 and the Disability Discrimination Act 1995 which occurred after their employment had terminated.

The cases spanned a number of alleged discriminatory acts. Ms Rhys-Harper's complaint was of sex discrimination in the failure to properly investigate a complaint she made of sex harassment in her appeal against dismissal. Mr D'Souza's complaint was of race discrimination and victimisation when Lambeth Council refused to comply with a Tribunal's reinstatement order after he was unfairly dismissed. The remaining cases were all post employment victimisation cases under the DDA. Three concerned the provision of references to prospective employers and the fourth was about the failure to hand back the dismissed employee's possessions.

In a forthright judgment, the House of Lords has overturned all the previous case law, such as Adekeye v Post Office [1997] IRLR 105 and got to the essence of the problem. It points out that it is ordinary experience that incidents of the employment relationship continue beyond the termination of the contract of employment. Often contractual rights and obligations continue such as those relating to confidentiality, bonuses and pensions. There are frequently other, non-contractual benefits too, such as the opportunity to obtain a reference and access to a grievance or appeal procedure.

The natural and proper interpretation of the SDA, RRA and DDA is that, once the employment relationship is formed, the employee is intended to be protected against discrimination by the employer in respect of all benefits arising from that relationship. The purpose of the legislation is to regulate how the employer conducts themself vis-a-vis all the benefits arising from the employment, whether as a matter of contractual entitlement or not. It therefore made no sense to draw an arbitrary and artificial line on termination of employment.

To be an incident of the employment relationship, the benefit in question must arise between the employer (or former employer) as such and the employee (or former employee) as such. The proper comparison is between the way the former employer treats the former employee to other former employees to see if discrimination has been established. The comparison is not the treatment of existing employees with that of the claimant ex-employee.

However the failure to comply with a Tribunal's reinstatement order was held to be outside the scope of the anti-discrimination provisions.

This landmark case will have considerable repercussions and employers will now need to look with great care at the way they treat their ex-employees. They are no longer immune from complaints of discrimination. This judgment is also in addition to the changes required under the EU Equality Directives which we reported in issue 75 of LELR.