Discrimination

Complaints of discrimination made after employment terminated - employment tribunal having jurisdiction to hear complaints - no jurisdiction to entertain discrimination claim arising from failure to comply with reinstatement order

Rhys Harper v Relaxion Group Plc; D'Souza v Lambeth London Borough Council; Jones v 3M Healthcare Ltd; Kirker v British Sugar Plc; Angel v New Possibilities NHS Trust; Bond v Hackney Citizens' Advice Bureau: HL (Lord Nicholls of Birkenhead, Lord Hope of Craighead, Lord Hobhouse of Woodborough, Lord Scott of Foscote and Lord Rodger of Earlsferry): 19 June 2003

In the first appeal, the applicant, having been dismissed following a disciplinary hearing, appealed under the employer's internal appeal procedure.

During the hearing she alleged that, throughout her employment, she had been subjected to sexual harassment by the manager who had conducted the disciplinary hearing.

Her appeal was dismissed and she was informed that there was no evidence of sexual harassment.

She complained to an employment tribunal that she had been discriminated against by her employer's failure properly to investigate her allegation of harassment.

The tribunal ruled on a preliminary point that it had jurisdiction to hear the complaint but the Employment Appeal Tribunal allowed the employer's appeal.

The Court of Appeal [2001] EWCA Civ 634; [2001] Gazette, 14 June, 43; [2001] ICR 1176, upheld that decision.

In the second appeal, the applicant complained of racial discrimination by his employers in failing to reinstate him pursuant to an order of an industrial tribunal which had upheld his complaint of wrongful dismissal.

The industrial tribunal awarded the applicant compensation for failure to reinstate, but held that it had no jurisdiction to hear the further complaint of continuing discrimination and victimisation.

The Employment Appeal Tribunal and the Court of Appeal upheld that decision.

In the third appeal, the applicants in four unrelated cases complained of disability discrimination in their employers' failure to provide references and to return certain property after they had left their employment.

The Employment Appeal Tribunal heard the cases together and ruled that the employment tribunal had no jurisdiction to hear the complaints.

The Court of Appeal [2002] EWCA Civ 304; [2002] ICR 1124, upheld that decision.

All the applicants appealed.

Frederic Reynold QC and Helen Gower (instructed by KSB Law for Hancock Caffin, Truro) for Ms Rhys-Harper; David Reade (instructed by Morrison & Foerster) for Relaxion Group; Karon Monaghan (instructed by the Commission for Racial Equality) for Mr D'Souza; David Griffiths-Jones QC and Keith Bryant (instructed by Head of Legal Services, Lambeth London Borough Council) for the council; Robin Allen QC and Sandhya Drew (instructed by Disability Rights Commission) for the applicants in the third appeal; Adrian Lynch QC (instructed by Greenwoods, Peterborough) for British Sugar; Thomas Kibling (instructed by Eversheds, Nottingham) for the other employers in the third appeal.

Held, allowing the appeals in the sex discrimination case and (Lord Scott of Foscote dissenting) in the disability discrimination cases but dismissing the appeal in the racial discrimination case, that the Court of Appeal's decision in Post Office v Adekeye [1996] Gazette, 13 December, 29; [1997] ICR 110, was wrong and should not be followed; that, although the complaints of victimisation and discrimination in the sex and disability discrimination cases had been made after the employment relationships had ended, they arose out of the employment relationship; that, therefore, the employment tribunal had jurisdiction to hear the applications and they would be remitted to the tribunal for determination; that in the racial discrimination case, the benefit acquired by an employee from a reinstatement order was not a benefit within the meaning of section 4(2) of the Race Relations Act 1976, since it arose not from the employment relationship but from an order of a tribunal in the exercise of its statutory discretion; that the statute itself provided an alternative remedy by way of compensation for non-compliance with a reinstatement order; and that, accordingly, the tribunal had no jurisdiction to entertain the complaint.