Relaxion Group plc v Rhys-Harper [2000] IRLR 810 EAT
We have previously reported the decision in Coote v Granada Hospitality (see LELR 38, September 1999, [1998] IRLR 656). In Belinda Coote's case the European Court of Justice held that the Equal Treatment Directive requires Member States to provide a remedy for ex-employees who are victimised by their former employer by not providing a reference to a prospective employer because they had brought sex discrimination proceedings.
When the case returned to the EAT ([1999] IRLR 452) they ruled that the Sex Discrimination Act allows an applicant to make a victimisation complaint in respect of events that occurred after the employment relationship had terminated. The EAT held that it could apply the ECJ decision in preference to the Court of Appeal decision in Adekeye v The Post Office (No 2) [1997] IRLR 105 which held that former employees have no protection as far of complaints of race discrimination victimisation are concerned.
Where does the decision of the ECJ leave ex-employees who believe they have been discriminated against on the grounds of their sex after the employment relationship has ended? The EAT in the Relaxion case deal with this question by saying that an applicant cannot bring a complaint under the Sex Discrimination Act in respect of an act of discrimination which takes places after the employment has ended, other than a claim of victimisation. Victimisation is defined as less favourable treatment based on a person bringing a complaint of discrimination or equal pay or raising the issue of discrimination. It was intended to enable people to raise discrimination complaints without fear of retribution.
This is an extremely narrow reading of the Coote decision, particularly as the EAT in Coote said that the words "woman employed by him" in section 6(2) of the SDA "as a matter of grammar, are capable of meaning "who has been employed" as well as "who is employed". They went on to say "Moreover the words "access to any other benefits, facilities or services" are apt to include both present and former employees as a present or former employee can be subjected to a detriment". Whilst the ECJ decision in Coote only dealt with the provision of references, Article 6 of the Equal Treatment Directive says that "Member States shall introduce into their national legal systems such measures as are necessary to enable all persons who consider themselves wronged...to pursue their claims by judicial process".
Surely an ex-employee who has been wronged by sex discrimination other than victimisation post employment should be covered? It seems that ex-employees discriminated against on the grounds of sex have no remedy unless they can show victimisation. Ex-employees treated less favourably on the grounds of race have no remedy at all. This appalling position can be changed in one of two ways - the Court of Appeal or a change in the law. The Department for Education and Employment is currently consulting on changes to the equal pay legislation and the vulnerable position of ex-employees. Unions can make their views known.
Thompsons' submission to the DfEE is available from the Employment Rights Unit, Congress House.