Veitch Penny LLP - Exeter | Crediton, Devon

Case

Relaxion Group v Rhys-Harper/D’Souza v London Borough of Lambeth/Jones v 3M Healthcare Ltd & other appeals
House of Lords (19 June 2003)

Issues

(1) Discrimination
(2) Jurisdiction
(3) Status of employment relationship post termination

Facts

These three appeals were heard consecutively each regarding whether an employer’s act of discrimination after an employee’s employment had come to an end came within the scope of the Sex Discrimination, Race Relations and Disability Discrimination Acts.

First appeal
Relaxion dismissed Christine Rhys-Harper in October 1995. She initiated an appeal via her employer’s internal appeal’s procedure. During the course of this procedure she alleged that during her employment she had suffered sexual harassment from her manager.

Her appeal was dismissed and she was informed that no evidence of sexual harassment had been found. She made a claim to the Employment Tribunal based upon sex discrimination submitting that her employers had failed to deal with her allegation properly. The Tribunal held that it had jurisdiction to hear her complaint. The employer appealed the decision. The appeal was allowed and was upheld by the Court of Appeal.

Second Appeal
The London Borough of Lambeth employed Donald D’Souza until he was dismissed in January 1990. He complained to the Employment Tribunal who found that he had been unfairly dismissed and discriminated against on racial grounds. The Tribunal ordered D’Souza’s reinstatement but the Council did not comply with the order. As a result D’Souza made further application alleging that the Council had victimised him and discriminated against him racially by deciding not to reinstate him. The Tribunal found that it had no jurisdiction to hear the application. Further appeals to the Employment Appeal Tribunal and Court of Appeal were dismissed.

Third Appeal
The third Appeal comprised of four separate disability discrimination cases. Each one involved alleged victimisation as a consequence of the employee making a complaint to a Tribunal.

The first case involved the non-return of property to a former employee who made a claim to the Employment Tribunal on the basis that he had been victimised and subject to sex and disability discrimination. The Employment Tribunal found that it had no jurisdiction to hear a discrimination claim because he was not employed at the time the incident occurred. However it could hear the victimisation claim under the Sex Discrimination Act.

The other three claims were based on alleged victimisation in relation to the provision of references at the termination of employment. Mr Curtis was successful in his claim of disability discrimination and unfair dismissal against British Sugar. He claimed that the reference supplied to a prospective new employer was unsatisfactory. His claim of victimisation was struck out on the basis of the decision in Post Office –v- Adekeye, which stated that the discrimination statutes could only offer assistance to those who are in employment at the date of the alleged incident.

Diane Angel was dismissed due to her back and hip problems and was successful in her claim for discrimination against her employer. A reference was supplied on her behalf but Ms Angel felt that it was fair to matters which she felt were adverse due to Employment Tribunal claim. The Employment Tribunal dismissed her claim on the basis that it had no jurisdiction.

Charmaine Bond was dismissed by her employer and she brought the claim of disability discrimination. Thereafter she made a further claim as her further employers had failed to provide a reference. Her claim was dismissed, as she had not been employed at the relevant date.

Appeals against these decisions were made to the Employment Appeal Tribunal and were dismissed. The Court of Appeal upheld the decisions.

All the Applicants appealed.

Decision

The appeals in the sex discrimination and disability discrimination cases were allowed. The appeal in the race discrimination case was dismissed.

The House of Lords confirmed that the Tribunal had jurisdiction under the sex discrimination, race relations and disability discrimination legislation to consider a complaint of discrimination where alleged acts took place post termination. Accordingly the decision in Adekeye was incorrect and could not be followed.

Comments

The employment relationship does not necessarily come to an end when the employment terminates. The House of Lords confirmed that protection could be offered to both current and former employees if there was a substantive connection arising between the discriminatory conduct and the employment relationship.

As a result, the discrimination statutes covered discrimination against dismissed employees during an internal appeal process. In addition, it may also assist the person where they have sought a reference. If an employer normally gives a reference, then clearly the employer must not discriminate. However if an employer ceases to give a reference after a given interval and a period has passed, it will not be discriminatory.

The race discrimination case (D’Souza) failed because the employer’s refusal to reinstate did not arise from the employment relationship but of an order of the tribunal. Statute itself provided an alternative remedy by way of compensation for non-compliance with a reinstatement order.