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.

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