Government
needs to clarify what residual liability companies retain after employees have left, particularly over
discrimination
Many
employers feel that provided termination is properly dealt with, liability to
ex-employees ceases once employment has ended. However, the post-termination
acts and omissions of employers have been the focus of a number of recent Court
of Appeal decisions, and they cannot afford to be complacent.
Potential
liability for post-employment events falls into two categories. First, the risk
of statutory discrimination or victimisation claims. Second, liability under
the general law in relation to the content of references.
A
number of Court of Appeal decisions within the last two years have consistently
held that UK discrimination legislation and the Employment Rights Act, as
currently drafted, do not cover acts which occur after employment has ended. In
D’Souza v Lambeth Borough Council, 2001, EWCA Civ 794, the court held that the
Race Relations Act did not protect an employee who alleged his former employer
refused to reinstate him as a result of previous tribunal claims brought by
him.
Post-termination
events
The
Court of Appeal came to the same conclusion last year in Rhys-Harper v Relaxion Group plc, (2001, IRLR 460). Here,
the Sex Discrimination Act was held not to cover an alleged incident of sexual
harassment during an internal appeal following dismissal.
More
recently, three joined appeals in Jones v 3M Healthcare and others,
(EAT/1099/00; EAT 1220/00; EAT/0714/00; EAT/ 1487/00), confirmed that,
similarly, the Disability Discrimination Act does not entitle a former employee to complain of discrimination or victimisation based on
post-termination events. Finally, in Fadipe v
Reed Nursing Personnel, 2001,EWCA Civ 1885, the same conclusion was
reached in relation to section 44 of the Employment Rights Act, which also
protects employees from victimisation.
Despite
the Court of Appeal’s consistency in approach, there still remains doubt,
however, about whether discrimination
legislation is capable of covering post-termination events. There are two
reasons for this. First, both D’Souza and Rhys-Harper are being appealed to the
House of Lords. Second, the judgment of the European Court of Justice in Coote
v Granada Hospitality Ltd, 1999, ICR 100, still leaves the door open for
applicants to argue that, at least in relation to sex discrimination,
post-termination events are covered by the Equal Treatment Directive.
This
case involves a successful victimisation claim arising out of an employer’s
failure to provide a reference to a former employee who had brought a previous
sex discrimination claim. The ECJ held that Article 6 of the Equal Treatment
Directive covered Ms Coote’s claim.
Perhaps
as a symptom of the uncertainties surrounding post-termination statutory
protection, the case law in relation to references has developed enormously in
recent years. Employers are now obliged not only to ensure the accuracy of
facts in a reference, but must also ensure that it is not misleading in any way
and does not give an unfair overall impression of the individual.
Whatever
the outcome of the D’Souza and Rhys-Harper cases in the House of Lords, this is
an area which needs legislative attention. The Government is currently
reviewing discrimination legislation, and has a golden opportunity to clarify
the responsibilities of employers in the post-termination period.
In
the meantime, employers should treat ex-employees on the same principles as
apply during recruitment and employment.
Points
to consider
●
Liability to employees does not end with their employment
●
References must be factually accurate and always give a true impression
●
Remember that race, sex and disability discrimination legislation may still
apply
Jonathan
Chamberlain is a partner in the employment team at Wragge & Co
