Relaxion Group plc (Respondents) v. Rhys-Harper (FC) (Appellant) D'Souza (Appellant) v. London Borough of Lambeth (Respondents) Jones (Appellant) v. 3M Healthcare Limited (Respondents) and three other actions

Termination of a contract of employment does not create an automatic boundary beyond which employment discrimination legislation ceases to apply. Protection extends to post-termination conduct which has a substantive and sufficiently close connection with the former employment relationship. This includes discriminatory treatment concerning references, internal dismissal appeals and other benefits or detriments arising from that relationship.

The former employer must act in that capacity. For non-contractual benefits, the proper comparison is ordinarily with the treatment of other former employees in comparable circumstances. A reinstatement order is different: it is a statutory remedy rather than a benefit arising from employment. Failure to comply with it therefore falls outside the employment provisions of the Race Relations Act 1976.

These conjoined appeals concerned alleged discrimination or victimisation after the relevant contracts of employment had ended. Rhys-Harper v Relaxion Group plc concerned the investigation of a sexual-harassment allegation raised during an internal appeal against dismissal. D'Souza v London Borough of Lambeth concerned an employer's refusal to comply with an employment tribunal's reinstatement order. Four appeals under the Disability Discrimination Act 1995 concerned references, information supplied to third parties and the retention of a former employee's business cards.

The Court of Appeal dismissed the respective appeals in [2001] EWCA Civ 634, [2001] EWCA Civ 794 and [2002] EWCA Civ 304. It treated Post Office v Adekeye [1997] ICR 110 as establishing that the legislation protected only persons whose employment subsisted when the alleged discriminatory act occurred.

The principal issue before the House was whether the expressions “employed by him” and “whom he employs” in the Sex Discrimination Act 1975, the Race Relations Act 1976 and the Disability Discrimination Act 1995 imposed that absolute temporal limit. A separate issue was whether refusal to obey a reinstatement order constituted discrimination in offering employment or conferring an employment benefit.

Held: the appeal of Ms Rhys-Harper was allowed unanimously. The four disability-discrimination appeals were allowed by a majority of four to one and remitted for further consideration. Mr D'Souza's appeal was dismissed unanimously.

1. Lord Nicholls delivered the leading speech, with whose interpretation and disposal Lord Rodger agreed. Lord Hobhouse reached substantially the same conclusions, while Lord Hope adopted the narrower language of a continuing employment relationship. The common majority conclusion was that contractual termination is not an absolute statutory cut-off. A post-termination act is within the employment field where the former employer acts as such and the conduct has a substantive or sufficiently proximate connection with the former employment relationship.

2. Per Lord Nicholls, the relationship may produce contractual and non-contractual incidents after employment ends, including pension and bonus obligations, references and internal dismissal procedures. The relevant benefit or detriment must arise between employer or former employer as such and employee or former employee as such. For non-contractual benefits, the claimant must ordinarily show that the benefit is normally provided, or would be provided, to other former employees in comparable circumstances. Current and former employees are not automatically comparable.

3. The relevant employment provisions of the Sex Discrimination Act 1975, the Race Relations Act 1976 and the Disability Discrimination Act 1995 bear the same meaning on this issue. The provisions cannot have one temporal meaning for victimisation and another for other forms of discrimination. Post Office v Adekeye [1997] ICR 110 was wrongly decided and was no longer good law.

4. Ms Rhys-Harper's complaint arose within the dismissal and internal-appeal process. The employment tribunal therefore had jurisdiction to reconsider it, although the House did not determine its merits or the remaining limitation questions.

5. Mr D'Souza's reinstatement order was a discretionary statutory remedy for unfair dismissal. It was not an employment benefit within section 4(2) of the Race Relations Act 1976. Refusal to comply was neither an employment detriment nor a refusal to offer employment under section 4(1)(c), particularly because the statutory scheme supplied its own compensation remedy.

6. The disability cases were not excluded merely because the impugned acts followed termination. Their factual connection with the former employment relationships required consideration by the tribunals. The House left open whether the reasonable-adjustment duty in section 6 of the Disability Discrimination Act 1995 continues after termination.

7. Lord Scott dissented from the disposal of the four disability appeals. He considered that protection continued only while the relationship itself remained alive, as during an internal appeal or a reasonable period for removing belongings. In his view, the relationships in the reference cases and in Mr Jones's case had ended before the alleged acts occurred.

• House of Lords — In [2003] UKHL 33, allowed Rhys-Harper v Relaxion Group plc and the four disability appeals, but dismissed D'Souza v London Borough of Lambeth.
• Court of Appeal — Dismissed Ms Rhys-Harper's appeal in [2001] EWCA Civ 634; [2001] ICR 1176. Dismissed Mr D'Souza's appeal in [2001] EWCA Civ 794. Dismissed the four disability appeals in [2002] EWCA Civ 304; [2002] ICR 1124.
• Employment Appeal Tribunal — Applied Post Office v Adekeye and held that the tribunals lacked jurisdiction over the alleged post-termination discrimination. The reported decisions included Ms Rhys-Harper's appeal at [2000] IRLR 810 and the disability proceedings at [2002] ICR 341.
• Employment tribunals — Determined the post-termination jurisdiction questions as preliminary issues. The claims were not fully investigated on their merits.