Employers would be wise to review their equal opportunities policies in light of recent cases concerning discrimination claims for staff after they have left employment
Now that the House of Lords has brought post-employment discrimination squarely within the ambit of race, sex and disability discrimination legislation, employers need to rethink their equal opportunities policies.
Prior to the House of Lords decision in Relaxion Group plc v Rhys-Harper, along with several other conjoined appeals including D'Souza v London Borough of Lambeth, and Jones v 3m Healthcare Limited, the general rule was that post-employment discrimination could not be actioned.
The Government acknowledged the potentially far-reaching consequences that post-employment discrimination can have on employees (for example, a refusal to provide a reference) in its Equality and Diversity: The Way Ahead consultation paper, which proposes widescale reforms to discrimination laws in the UK. One of the proposals put forward was the prohibition of post-employment discrimination on all grounds. However, the House of Lords has now overtaken the Government reforms in Relaxion and brought the matter to a head.
In Relaxion, a female employee claimed sex discrimination as a result of sexual harassment which occurred during an appeal following her termination of employment. She also claimed that the investigation into her complaint was handled in a discriminatory manner.
When the case was heard by the Court of Appeal, it was held that as the employee ceased to be employed by the date of the act complained of, she could not bring her complaint under the Sex Discrimination Act 1975 (SDA), as this only covered current staff and job applicants.
The same reasoning was applied by the Court of Appeal in D'Souza, where an employee claimed victimisation under the Race Relations Act 1976 as a result of his employer's allegedly discriminatory refusal to comply with a tribunal order for reinstatement.
In Jones, an employee claimed victimisation based on his employer's refusal to return business cards after his dismissal, which had generated a complaint under the Disability Discrimination Act 1995. Three other disability victimisation claims dealt with the provision of post-employment references. The Court of Appeal rejected the complaints because the DDA only prohibits discrimination against job applicants and those that th