EAT ruling throws victimisation laws into state of confusion

The law on post-termination victimisation has been thrown into further
confusion following a ruling by the Employment Appeal Tribunal.

This latest decision means that while employers can be liable under the sex
discrimination laws for acts which occur after employment has ended, they
cannot be liable for disability or race discrimination.

Jones and Others v 3M Healthcare and Others [2002] EAT unreported, is the
first authoritative ruling on this issue under the Disability Discrimination
Act. In three of the cases the former employers had retaliated against earlier
discrimination proceedings by refusing to provide a reference or giving a bad
one – the most common type of complaint in this area. In the other case it was
alleged the employer failed to return business cards.

In each case, the EAT held that the DDA prohibits discrimination and
victimisation only against job applicants and those whom the employer "employs".
It cannot be interpreted to include a former employee, and so the tribunal had
no jurisdiction to hear the complaints. Arguments for a wider interpretation
based on the Human Rights Act failed.

The decision follows the same approach as case law under the Race Relations
Act, including two Court of Appeal decisions. But in Coote v Granada
Hospitality the EAT held that post-termination victimisation was actionable
under the Sex Discrimination Act in order to comply with the Equal Treatment
Directive (see panel).

Christopher Mordue, employment associate with Pinsent Curtis Biddle, warned
employers not to be complacent. "While the applicants in Jones had no
redress under the DDA, the EAT pointed out that employers have a potential
liability at common law if they fail to provide a reference at all or one which
is false or misleading.

"In any event, the point is under appeal to the House of Lords in
D’Souza (see below), a race discrimination case which could affect the interpretation
of the DDA. What’s more, the introduction of directives on race, disability and
other discrimination could lead to the approach in Coote being extended.
Legislative changes cannot be ruled out."

The EAT expressed dissatisfaction with the Jones result but said it was
unable to interpret the DDA in any other way. It also noted the disability act
was enacted after the courts had identified the same gap in the RRA but
Parliament had still failed to address the issue.

Post-termination discrimination

Nagarajan v Agnew [1994] IRLR 61, EAT: N settled race
discrimination proceedings against London Underground, who later gave an
unfavourable reference. The EAT held that no unlawful discrimination had
occurred as there was no employment relationship at the time.

Adekeye v Post Office [1996] IRLR 105, CA: reached a
similar conclusion. Provisions prohibiting discrimination against "a
person employed" and "an employee" could not be interpreted to
protect a former employee.

D’Souza v London Borough of Lambeth [2001] EWCA Civ
794, CA: D complained of unfair dismissal and race discrimination. Lambeth
refused to comply with a reinstatement order, which D argued was victimisation.
The CA reluctantly applied Adekeye: a post-termination act could not be
victimisation. D’Souza has appealed to the House of Lords.

Coote v Granada Hospitality [1999] IRLR 452, EAT: C
settled a complaint for sex discrimination. Later, Granada refused to supply a
reference. She alleged victimisation. After reference to the ECJ, the EAT held
that to comply with the Equal Treatment Directive the SDA must be interpreted
to cover post termination victimisation.

Rhys-Harper v Relaxion Group [2001] IRLR 460, CA: R
was dismissed and during her appeal complained of pre-termination sexual
harassment. She complained to a tribunal about her employer’s handling of her
allegations. The Court held as this act occurred after dismissal, no complaint
could be made: Coote applied only to cases where the employer had retaliated
against proceedings brought to enforce the Equal Treatment Directive.

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