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(2003) 4 All ER 1113 : (2003) ICR 867 : (2003) IRLR 484 : (2003) 74 BMLR 109, House of Lords - Frederic Reynold QC, Helen Gower
The employment tribunal had jurisdiction to hear discrimination complaints after the termination of employment as long as the alleged discriminatory conduct had sufficient connection with the employment relationship.
Appeals by employees under the sex, race relations and disability discrimination legislation from Court of Appeal decisions that the legislation did not extend to former employees. In the sex discrimination case the appellant ('H') was summarily dismissed on grounds of misconduct. She appealed to her employer and complained of sexual harassment. Her appeal was dismissed. She applied to an employment tribunal complaining of unfair dismissal and sex discrimination. The tribunal found as a preliminary issue that her complaint of sex discrimination in relation to the investigation of her complaint was in time. However, the Employment Appeal Tribunal allowed the employer's appeal holding that H could not complain of post-termination discrimination. The Court of Appeal Christine Rhys-Harper v Relaxion Group plc (2001) ICR 1176 upheld that decision following Adekeye v Post Office (1997) ICR 110. In the race discrimination case the employment tribunal made an order for the reinstatement of the appellant ('S') with which the employer failed to comply. Later the tribunal held that reinstatement had not been practicable. S applied to the employment tribunal complaining of racial discrimination and victimisation by the council in failing to reinstate him. The tribunal following Adekeye (Supra) held that it had no jurisdiction to hear the applications. The EAT and Court of Appeal dismissed S's appeals (Donald D'Souza v Lambeth London Borough Council (2001) EWCA Civ 794). In the disability discrimination cases, three appellants claimed victimisation in relation to the employer's failure to provide a reference after the termination of employment. The fourth appellant ('J') complained of victimisation by his former employer in refusing to return certain business cards and of discrimination on grounds of sex and disability. The employment tribunal held that it had no jurisdiction to hear the claims under the Disability Discrimination Act 1995 because J was no longer an employee but that it did have jurisdiction to hear the sex discrimination claim by virtue of Council Directive 76/207/EEC (the Equal Treatment Directive). The EAT and Court of Appeal dismissed appeals in the disability discrimination cases (Jones v 3M Healthcare Ltd and other appeals (2002) ICR 1124. The issues for the House of Lords were: (i) whether under s.6(2) Sex Discrimination Act 1975, s.4(2) Race Relations Act 1976 and s.4(2) Disability Discrimination Act 1995 the employment tribunal could consider complaints by former employees, and (ii) in the case of S whether he could complain of discrimination in respect of the refusal to reinstate.
HELD: (1) Adekeye (Supra) was wrongly decided. The words "employed by him" and "whom he employs" in the relevant sections of the anti-discrimination legislation all bore the same meaning and covered discrimination after termination of the employment contract so long as the employee's complaint was an incident of or arose from the employment relationship. There had to be a substantive connection between the discriminatory conduct and the employment relationship. (2) Applying that test H's appeal was allowed in the sex discrimination case. (3) The giving of a reference was a prime example of an incident of the employment relationship and therefore, the appeals in the four disability discrimination cases were allowed. The employment tribunal had jurisdiction to consider those victimisation claims. (Per Lord Scott dissenting) The question whether the anti-discrimination Acts applied depended on whether the employment relationship was still in existence which it would be during the currency of internal appeal procedures. However, the disability discrimination appeals should be dismissed because the alleged acts of discrimination took place after the employment relationship had come to an end. (4) S's appeal in the race discrimination case failed because the council's refusal to reinstate him was not conduct falling within s.4 Race Relations Act 1976. The benefit acquired by an employee from a reinstatement order could not be regarded as a benefit within the meaning of s.4(2) of the 1976 Act. It did not arise from the employment relationship. The employer's failure to comply with the order was not a detriment within s.4(2). Nor did the case fall within s.4(1) of the 1976 Act.
Frederick Reynold QC & Helen Gower instructed by Hancock Caffin for H. David Reade instructed by Morrison & Foerster MNP for Relaxion. Karon Monoghan insrtucted by the Commission for Racial Equality for S. David Griffiths-Jones QC & Keith Bryant instructed by the Solicitor for the London Borough of Lambeth for the London Borough of Lambeth. Robin Allen QC & Sandya Drew instructedby the Disability Rights Commission for Jones, Kirker, Angel and Bond. Adrian Lynch QC & Thomas Kibling instructed by Eversheds for 3M, Greenwoods for Britich Sugar and Beachcroft Wansbroughs for New Possibilities.
LTL 19/6/2003 : (2003) 4 All ER 1113 : (2003) ICR 867 : (2003) IRLR 484 : (2003) 74 BMLR 109 : Times, June 23, 2003 : Independent, June 24, 2003.