Rhys-Harper v Relaxion Group plc

The House of Lords decided that the employment anti-discrimination statutes (the Sex Discrimination Act 1975, the Race Relations Act 1976 and the Disability Discrimination Act 1995) are capable of applying to acts or omissions of an employer that occur after the contract of employment has ended where the impugned conduct is properly to be regarded as an incident of the employment relationship. The court construed the critical phrases ('employed by him' and 'whom he employs') purposively so as to protect benefits or opportunities arising from the employment relationship that endure or remain attributable to that relationship.

The House distinguished matters that derive instead from separate statutory remedies: refusal to comply with a tribunal reinstatement order was held not to be conduct falling within section 4 of the Race Relations Act 1976 because it arose from the exercise of the tribunal's statutory remedies rather than from the employment relationship.

This set of consolidated appeals raised whether discriminatory acts by an employer after termination of employment fall within the prohibitions in the Sex Discrimination Act 1975, the Race Relations Act 1976 and the Disability Discrimination Act 1995. The appeals came from decisions of the Court of Appeal ([2001] EWCA Civ 634; [2001] EWCA Civ 794; [2002] EWCA Civ 304) and concerned several factual scenarios: an appellant who complained that her employer failed properly to investigate a sexual harassment complaint made in the course of an internal appeal after dismissal (Rhys-Harper); an appellant who complained that his former employer refused to comply with a tribunal reinstatement order (D'Souza); and four disability victimisation/reference disputes arising after employment had ended (Kirker, Angel, Bond, Jones).

The court framed the issues as (i) the meaning of the qualifying phrases in the employment provisions ('employed by him' / 'whom he employs'), (ii) whether the Equal Treatment Directive and the European Court of Justice authority require a different construction in sex discrimination cases, and (iii) whether refusal to comply with a reinstatement order is conduct within the Race Relations Act. The House held that the statutory language is ambiguous and, read purposively and in context (and where relevant in conformity with EC law as interpreted in Coote), may cover post-termination conduct that is an incident of the employment relationship (for example internal appeal decisions, provision or refusal of references, other benefits arising from employment) so long as there is a substantive connection between the impugned act and the employment relationship. The court emphasised limits: casual or wholly remote acts long after employment will not ordinarily be covered, and statutory reinstatement orders are remedies of the tribunal regime and not themselves 'benefits' arising from employment under section 4 of the Race Relations Act; consequently failure to comply with such an order does not give rise to a fresh discrimination claim under that Act.

Remedies and disposition: appeals in the sex discrimination and the disability reference/victimisation cases were allowed (remitted to tribunals for further factual investigation and determination). The Race Relations Act reinstatement claim (D'Souza) was dismissed because the council's refusal to comply with the tribunal's reinstatement order was not conduct falling within section 4 of the Race Relations Act.

Appeal allowed in part. The House held that the employment anti-discrimination provisions can cover post-termination acts or omissions of an employer when those acts are properly attributable to the employment relationship (for example internal appeal decisions, references and similar benefits), and that tribunals have jurisdiction to hear such claims where there is a sufficient connection. The House disapproved Post Office v Adekeye and followed the purposive approach and, where applicable, the European Court of Justice reasoning in Coote. However the House held that an employer's failure to comply with a tribunal order for reinstatement is not a 'benefit' or 'detriment' arising from the employment relationship for the purposes of the Race Relations Act, so D'Souza's claim failed.

Appeals to the House of Lords from the Court of Appeal decisions: [2001] EWCA Civ 634 (Rhys-Harper), [2001] EWCA Civ 794 (D'Souza), and [2002] EWCA Civ 304 (Kirker and others). Earlier Employment Appeal Tribunal and tribunal decisions (including Nagarajan v Agnew and Adekeye in the lower courts) were considered and some were disapproved.