Can you still discriminate against an ex-employee?

The EAT has hinted that the House of Lords should make a clear ruling
regarding discrimination of ex-staff under the DDA

Are employees protected against disability discrimination where their
complaint concerns events that occur after their employment ends? This was the
question for the Employment Appeal Tribunal in the joint appeals of Jones v 3M
Healthcare Ltd; Kirker v (1) Ambitions Personnel (Nottinghamshire) Ltd (2)
British Sugar plc; Angel v New Possibilities NHS Trust; and Bond v Hackney
Citizens Advice Bureau. (EAT/0714/00, EAT/1099/00, EAT/1220/00 &
EAT/1487/00)

The facts and cases

– In the first case, 3M refused to return some business cards to Mr Jones
(who was severely clinically depressed) two years after his employment ended.
Jones brought proceedings in the employment tribunal claiming this was because
he was disabled, and because he had brought a disability discrimination claim
during his employment.

– Mr Kirker and Miss Bond’s claims each concerned their former employer’s
failure to provide a reference after their employment ended. They claimed this
was victimisation for having previously brought disability discrimination
claims.

– In Mrs Angel’s case, her former employer provided a reference after her
employment terminated, but it contained adverse comments. Again, she claimed
this amounted to victimisation by her employer because she had previously
brought a disability discrimination claim.

In each case, the employment tribunal ruled it was unable to consider the
complaint because it concerned events arising after employment ended. The
applicants appealed.

Appeal to the EAT

The EAT noted that while the higher courts had never considered this issue
in relation to disability discrimination claims, they had considered the
position in relation to claims under the Sex Discrimination Act 1975 and Race
Relations Act 1976. The EAT felt it was relevant to look at those decisions
since "where the language permits, courts and tribunals are encouraged to
see all three acts as a trilogy containing similar provisions such that it is
permissible to consider the other two in the construction of any one of
them".

After reviewing the decisions in those areas, the EAT concluded that
tribunals had no power to hear sex or race discrimination claims concerning
events which occurred after employment ended, except where the employee was
victimised post-employment for attempting, while in employment, to enforce
rights under the Equal Treatment Directive (which was not relevant in this
case).

The EAT also noted that the wording of the Disability Discrimination Act was
slightly different to the Race and Sex Discrimination Acts and, if anything,
made it even more clear that post-termination events were not covered.

Consequently, the EAT ruled that ex-employees had no protection against
disability discrimination or victimisation under the DDA, where their complaint
concerned post-termination events. The EAT considered this outcome to be
unsatisfactory, and hinted that Parliament should legislate to address this.

The only alternative, it said, was for the House of Lords to change the law.
It noted the HoL may consider this issue shortly, in a race discrimination case
D’Souza v London Borough of Lambeth, 2001, EWCA Civ 794. Meanwhile, it gave
permission to appeal its decision to the Court of Appeal.

Key points

– This decision brings the DDA 1995 in line with existing Court of Appeal
decisions in relation to the Sex Discrimination Act 1975 and Race Relations Act
1976.

– It is currently lawful to discriminate against an ex-employee on the
grounds of disability or to victimise an ex-employee who has brought a
disability discrimination claim.

– The law may change, depending upon the outcome of the D’Souza case in the
House of Lords.

By Nicholas Moore, head of employment at Osborne Clarke

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