Case round-up

Case round-up by Eversheds 020 7919 4500

Post-employment discrimination
Relaxion Group plc v Rhys-Harper & other appeals, House of Lords [19 June 2003] All ER(D)258

Following this case, employers can now be held liable for acts of post-termination sex, race and disability discrimination. These three appeals concerned the issue of whether ex-staff could claim to have suffered a 'detriment' for the respective purposes of sex, race and disability discrimination legislation, in relation to their employers' conduct after the termination of employment.

The Court of Appeal ruled in these cases that acts or events occurring after employment had ended could not amount to unlawful discrimination. The staff in each case appealed against this decision.

The Lords ruled that an employer could be held liable for acts of post-termination discrimination. The proper interpretation of the legislation was that once two people enter into an employer/employee relationship, it is intended for the worker to be protected against discrimination by the employer in respect of all circumstances arising from that relationship.

It makes no sense to draw an arbitrary line between the time when the employment contract is in place, thereby providing the worker with protection against discrimination, and the time when the contract ends, leaving them with none. However, the act must arise out of the employment relationship. One worker lost his appeal as his complaint related to his employer's failure to comply with a tribunal's reinstatement order, which hadn't arisen from the working relationship.

The Race Relations Act 1976 (Amendment) Regulations 2003, which is due to come into force on 19 July, will make post-termination racial discrimination and harassment unlawful.

No protection for sexual orientation
Macdonald v Advocate General for Scotland; Pearce v Governing Body of Mayfield School, House of Lords [19 June 2003] All ER(D) 259

The House of Lords has ruled that less favourable treatment by employers on the basis of a worker's sexual orientation does not amount to discrimination on the grounds of sex for the purposes of the Sex Discrimination Act 1975.

The court considered two similar appeals. Pearce, a schoolteacher, regularly suffered abuse from pupils for being a lesbian. She claimed that the school had directly discriminated against her under the Sex Discrimination Act 1975, by failing to take adequate steps to prevent the abuse. Similarly, Macdonald was forced to resign from the RAF after disclosing his homosexuality. He claimed his employers had treated him less favourably than they would have treated a woman, in that a female comparator (a heterosexual woman) would not have been forced to resign. He claimed this amounted to discrimination under the Sex Discrimination Act 1975.

Both appealed to the House of Lords against decisions dismissing their complaints.

The Lords dismissed their appeals. The Sex Discrimination Act 1975 was not aimed at sexual orientation and the expression 'on the grounds of her sex' in section 1 of the Act could not be interpreted to include sexual orientation. In both cases, the Lords stated the appropriate comparator was a homosexual of the opposite sex, not a heterosexual.

Pearce's additional argument that the name-calling would not have been directed at her had she been a man, and that she therefore didn't need to identify a comparator, was rejected.  The court commented the harassment was not aimed at her sex, but rather her sexual orientation.