EAT ruling throws victimisation laws into state of confusion

first_imgThe law on post-termination victimisation has been thrown into furtherconfusion following a ruling by the Employment Appeal Tribunal. This latest decision means that while employers can be liable under the sexdiscrimination laws for acts which occur after employment has ended, theycannot be liable for disability or race discrimination. Jones and Others v 3M Healthcare and Others [2002] EAT unreported, is thefirst authoritative ruling on this issue under the Disability DiscriminationAct. In three of the cases the former employers had retaliated against earlierdiscrimination proceedings by refusing to provide a reference or giving a badone – the most common type of complaint in this area. In the other case it wasalleged the employer failed to return business cards. In each case, the EAT held that the DDA prohibits discrimination andvictimisation only against job applicants and those whom the employer “employs”.It cannot be interpreted to include a former employee, and so the tribunal hadno jurisdiction to hear the complaints. Arguments for a wider interpretationbased on the Human Rights Act failed. The decision follows the same approach as case law under the Race RelationsAct, including two Court of Appeal decisions. But in Coote v GranadaHospitality the EAT held that post-termination victimisation was actionableunder the Sex Discrimination Act in order to comply with the Equal TreatmentDirective (see panel). Christopher Mordue, employment associate with Pinsent Curtis Biddle, warnedemployers not to be complacent. “While the applicants in Jones had noredress under the DDA, the EAT pointed out that employers have a potentialliability at common law if they fail to provide a reference at all or one whichis false or misleading. “In any event, the point is under appeal to the House of Lords inD’Souza (see below), a race discrimination case which could affect the interpretationof the DDA. What’s more, the introduction of directives on race, disability andother discrimination could lead to the approach in Coote being extended.Legislative changes cannot be ruled out.” The EAT expressed dissatisfaction with the Jones result but said it wasunable to interpret the DDA in any other way. It also noted the disability actwas enacted after the courts had identified the same gap in the RRA butParliament had still failed to address the issue. Post-termination discrimination – Nagarajan v Agnew [1994] IRLR 61, EAT: N settled racediscrimination proceedings against London Underground, who later gave anunfavourable reference. The EAT held that no unlawful discrimination hadoccurred as there was no employment relationship at the time. – Adekeye v Post Office [1996] IRLR 105, CA: reached asimilar conclusion. Provisions prohibiting discrimination against “aperson employed” and “an employee” could not be interpreted toprotect a former employee.– D’Souza v London Borough of Lambeth [2001] EWCA Civ794, CA: D complained of unfair dismissal and race discrimination. Lambethrefused to comply with a reinstatement order, which D argued was victimisation.The CA reluctantly applied Adekeye: a post-termination act could not bevictimisation. D’Souza has appealed to the House of Lords.– Coote v Granada Hospitality [1999] IRLR 452, EAT: Csettled a complaint for sex discrimination. Later, Granada refused to supply areference. She alleged victimisation. After reference to the ECJ, the EAT heldthat to comply with the Equal Treatment Directive the SDA must be interpretedto cover post termination victimisation.– Rhys-Harper v Relaxion Group [2001] IRLR 460, CA: Rwas dismissed and during her appeal complained of pre-termination sexualharassment. She complained to a tribunal about her employer’s handling of herallegations. The Court held as this act occurred after dismissal, no complaintcould be made: Coote applied only to cases where the employer had retaliatedagainst proceedings brought to enforce the Equal Treatment Directive. EAT ruling throws victimisation laws into state of confusionOn 1 Feb 2002 in Personnel Today Related posts:No related photos. Previous Article Next Article Comments are closed. last_img