Post-employment discrimination

Rhys-Harper v Relaxion Group plc, etc [2003] IRLR 484

The House of Lords considered three appeals concerning whether discriminatory acts of an employer following termination of employment fall within the scope of the legislation prohibiting discrimination on the grounds of sex, race and disability.

Their Lordships held that an employment tribunal has jurisdiction under the Sex Discrimination, Race Relations and Disability Discrimination Acts to consider a complaint of discrimination which relates only to acts which are alleged to have taken place after the complainant's employment has ended.

The Court of Appeal's ruling in Adekeye v The Post Office (No.

2) (1997) IRLR 105 was wrong.

The House of Lords pointed out that Parliament cannot have intended that the prohibition against discrimination in respect of dismissal should include an appeal decision regarding dismissal if the appeal is heard before the dismissal takes effect - but not if it is heard later.

Nor can a distinction be drawn between giving a reference the day before employment ends and giving a reference the day after.

If it is the employer's practice to give reference to former employees, then the employer must not discriminate.

Failure to provide a non-contractual benefit will not constitute discrimination unless that benefit is one that normally is provided, or would be provided, to others in similar circumstances.

Sex discrimination

Macdonald v Advocate-General for Scotland; Pearce v Governing Body of Mayfield Secondary School [2003] IRLR 512

These two appeals concerned the extent to which lesbians and gay men who have been discriminated against or harassed have a remedy against their employer under the Sex Discrimination Act 1975.

The House of Lords ruled that neither Mr Macdonald, who was dismissed from the RAF because he is homosexual, nor Ms Pearce, who was subjected to sustained harassment because she is lesbian, was discriminated against on grounds of sex.

In the context of section 1, Sex Discrimination Act 1975, 'sex' means 'gender' and does not include sexual orientation.

Gender and sexual orientation are distinct personal characteristics.

Sexual harassment is only prohibited by the 1975 Act if the claimant can show she was harassed because she was a woman.

The suggestion in some cases that if the form of the harassment is sexual or gender-specific, such as verbal abuse in explicitly sexual terms, that of itself constitutes less favourable treatment on the ground of sex, cannot be reconciled with the language or the scheme of the statute.

The fact that harassment is gender-specific in form does not establish that the reason for the harassment is gender-based, 'on the ground of her sex'.

It will be evidence, the weight of which will depend on the circumstances, that the reason for the harassment was the sex of the victim, although in some circumstances, the inference may readily be drawn that the reason for the harassment was gender-based, for example where a male employee subjects a female colleague to persistent, unwanted sexual overtures.

However, the observation in Strathclyde Regional Council v Porcelli (1984) IRLR 467, that if a form of unfavourable treatment is meted out to a woman to which a man would not have been vulnerable, she has been discriminated against, is incorrect insofar as it suggests that it is not relevant whether the applicant was treated less favourably than a man where the harassment is sexually orientated.

It is reading too much into Porcelli to say that it would be no defence to a complaint of sexual harassment that a person of the other sex would have been so treated.

The House of Lords made the further noteworthy comment that the well-known Bernard Manning case, Burton v De Vere Hotels Ltd (1996) IRLR 596, was wrongly decided.

It treated an employer's inadvertent failure to take reasonable steps to protect employees from racial or sexual abuse by third parties as discrimination even though the failure had nothing to do with the sex or race of the employees.

An employer cannot be in a worse position regarding sexual or racial harassment of an employee by a third party for whose behaviour he is not vicariously liable, than he is regarding sexual or racial harassment committed by himself.

The first error in Burton was to proceed on the basis that harassment which is race-specific in form is in itself less favourable treatment on racial grounds.

The second error arose because the harassment was committed by a third party for whose conduct the employer was not vicariously responsible.

The approach of the Employment Appeal Tribunal (EAT) in Burton, that the tribunal should ask itself whether the event in question was something which was sufficiently under the control of the employer that he could by the application of 'good employment practice' have prevented the harassment or reduced its effect, was not based on anything which is to be found in the legislation.

Employment Appeal Tribunal

Kanapathiar v London Borough of Harrow [2003] IRLR571

The EAT upheld a decision of its registrar, who followed what was then the current EAT practice and granted the applicant a one-day extension of the 42-day time limit for appealing against a tribunal decision.

The applicant had put in a notice of appearance within the required period but without the tribunal's extended reasons as required by Rule 3(1), Employment Appeal Tribunal Rules 1993.

A notice of appeal not accompanied by the necessary documents is invalid.

The EAT's practice of taking a lenient approach and granting extensions of time where a notice of appeal, unaccompanied by extensive reasons, was put in within 42 days would now stop.

In future, the same approach will be adopted in respect of a notice of appeal which is not accompanied by the required documents within the 42-day period as has previously been applied to a notice of appeal not lodged at all within 42 days.

The time limit will only be relaxed in exceptional cases where the EAT is satisfied that there is an acceptable explanation for the reasons for the delay.

Peters v Sat Katar [2003] IRLR 574

Here, the Court of Appeal said that the EAT registrar erred in refusing an application for an extension of time for appealing a tribunal's decision.

The applicant, a litigant in person, proposed to enter a notice of appeal while within the 42-day time limit and did not discover it had not been received until she contacted the EAT some four weeks later, 11 days after the deadline had expired.

The fact that a letter had been lost in the post through no fault of the applicant is relevant to an application to extend time.

A litigant in person with no knowledge of the practice of the EAT is not expected to have a similar system in place as that of a solicitor for checking whether communication sent by post has been received.

The Court of Appeal suggested that the information pack provided to litigants together with a tribunal's decision should include further guidance as to what the applicant should do if they wish to appeal.

They should be told how long they should wait before enquiring of the EAT why they have received no acknowledgement of the notice of appeal.

By Martin Edwards, Mace & Jones, Liverpool