Until recently, case law concerning acts of discrimination post-employment was contradictory. Previous case law established that an ex-employee was unable to complain of post-employment race or disability discrimination. However, an employer could be liable for a claim based on sex discrimination arising after the termination.
In a recent decision, the House of Lords considered three appeals in the cases of Relaxion Group Plc -v- Rhys Harper, D’Souza -v- Lambeth London Borough Council, and Jones -v- 3M Healthcare Limitedand three other actions.
The Relaxion case involved a complaint by a former employee of sex discrimination in connection with an alleged failure by the employer to carry out a proper investigation of a sexual harassment claim which she had made during her appeal against her dismissal (i.e. after her employment had ended).
The D’Souza case concerned a complaint by a male employee that he was victimised on racial grounds by the employer’s refusal to comply with the Tribunal’s Order for reinstatement.
The Jones & otherscase concerned complaints regarding the provision of references after the termination of their employment following complaints made by the individuals under the Disability Discrimination Act and a refusal by the employer to return employees property after dismissal.
The House of Lords ruled that in relation to the Relaxion and Jonescases, such post-employment conduct can be the subject of discrimination complaints. This is on the basis that, even though the conduct of the employer took place after the termination of employment, there was still an employment relationship between the parties and the discrimination arose from that relationship. In the case of D’Souza the failure to comply with a Tribunal order was not an act arising out of any continuing employment relationship between the parties and this appeal was dismissed.
What does this mean for employers?
Employers cannot rely simply on the fact that an individual’s employment has been terminated to defeat claims of discrimination. Any alleged post-termination discrimination on the grounds of sex, race or disability may give rise to a valid claim where the ex-employee can demonstrate the claim is connected with the employment relationship. A common example of this would be concerning the provision of a reference.
Consider their policy on providing references.
Be alert to potential complaints arising out of the refusal to supply a reference.
Consider adopting a standard response to all reference requests.
Ensure that any allegations of harassment or discrimination raised post employment are properly investigated in accordance with normal Company procedures. Failure to do so could attract a claim.
Employers should also be aware the above points have effectively been incorporated into statute that under the provisions of revised race discrimination legislation that was coming into force on 19 July 2003.
An employer will be held to discriminate against a former employee on the grounds of race if the employer subjects that employee to a detriment which resulted from the previous employment relationship between the parties.
Forthcoming changes to disability and sex discrimination legislation and new legislation covering discrimination on the grounds of sexual orientation and religious belief will contain similar provisions.