Your staff may go – but discrimination lives on

The
Court of Appeal has clarified some conflicting views on post-employment
discrimination claims, reports Sarah Lamont.

There
has been some debate recently as to whether the Sex Discrimination Act (SDA)
and Race Relations Act (RRA) cover discrimination that occurs after employment
has terminated.  Both statutes say it is
unlawful for an employer to discriminate against a person "employed by
him". So the issue depends on whether "employed" is interpreted
as being limited to those who are currently employed or whether it also covers
ex-employees.

In
1997, the Court of Appeal held in Adekeye v Post Office (No 2), 1997, IRLR 105,
that the RRA was limited to those currently employed, and so does not cover
post-employment discrimination

Ordinarily,
this would have meant that, as the SDA is worded in the same terms, the same
would be true for post-employment sex discrimination claims.  However, unlike the RRA, the SDA must be
interpreted in the light of the European Equal Treatment Directive. And the
European Court ruled in 1999 (Coote v Granada Hospitality, 1999, ICR 100, that
victimisation of an employee which occurs after the termination of employment
(but which relates to a protected act carried out during employment) is covered
by that directive.   

Granada
was found to have retaliated against Coote for bringing a sex discrimination
claim while she was employed by them by refusing to supply her with a
reference. The EAT held that there was nothing to stop the court interpreting
the SDA as including ex-employees, so that it could conform with the directive.
 

But
last year the EAT looked at the issue again in Relaxion Group v Rhys-Harper,
EAT 2000, IRLR 810, in which Rhys-Harper was dismissed following a disciplinary
hearing in October 1998. She invoked the company’s appeals procedure and,
during the course of the appeal, made an allegation of sexual harassment
against her manager.

Relaxion
investigated the complaint and in November informed her that it rejected both
her appeal and the harassment allegation. Rhys-Harper claimed under the SDA,
alleging that Relaxion had failed to investigate her complaint properly – an
act of direct sex discrimination.

The
tribunal allowed the complaint on the basis that her employment had continued
until November, when she had been notified of the appeal. Relaxion appealed to
the EAT, which decided that the employment had terminated in October and that
the claim therefore failed because it had been brought post-termination.
Further, in the Coote case, the ECJ was only extending post-termination claims
in a very limited way – when the claim was one of victimisation, not direct or
indirect discrimination.

Clearly,
further guidance at Court of Appeal level was necessary and this has now been
received in that court’s decision in Rhys-Harper v Relaxion Group, unreported,
May 2001. The court held that the wording of the SDA only covers people who
were employees at the date of the alleged discrimination. It also agreed with
limiting the impact of the ECJ’s ruling in Coote to those cases where the claim
was for post-termination following a protected act prior to termination.  

For
all other cases, the Court of Appeal’s decision in Adekeye should be followed,
so ultimately this claim must fail.

This
gives some consistency between the approaches under the RRA and the SDA in the
majority of claims, with the exception of victimisation claims. In such  cases, the decision in Coote will apply
where the victimisation amounts to sex discrimination.

Key points


Under the RRA, post-termination claims are not possible.


Under the SDA, a post-termination claim for direct or indirect discrimination
is not possible, but the tribunal can have jurisdiction to hear a claim for
victimisation in response to the employee’s acts while they were employed.


Employers should continue to take care when giving references.    

 Sarah Lamont is  a partner
at Bevan Ashford

Comments are closed.