Rhys-Harper v Relaxion Group PLC [2001] IRLR 460 CA

We reported in Issue 55, (February 2001) the decision of the Employment Appeal Tribunal in this case. The case was about sex discrimination by an employer of a former employee that takes place after the employment has terminated and whether the Sex Discrimination Act, as interpreted in line with the Equal Treatment Directive, extends to cover post employment discrimination.

The law is already clear in respect of post employment victimisation which is within the scope of the Sex Discrimination Act, the issue is for direct and indirect discrimination for ex-employees or former job applicants. The EAT said that these forms of discrimination were not within the field of employment and therefore outside the SDA. We commented that surely ex-employees who had been wronged by sex discrimination (other than victimisation) after the employment has ended should have some remedy. We said that the appalling position could be changed in one of two ways -the Court of Appeal or a change in the law.

Unfortunately the Court of Appeal are not going to help, as their decision upholds the decision of the EAT. Future appeals in this case are unlikely as leave to appeal to the House of Lords has been refused. This leaves us waiting for the government to legislate. Perhaps the opportunity afforded by the necessity for domestic legislation to implement Article 13 of the EC Directive should be urgently utilised by law seeking to close this gap in the law.

Until then the decision in Rhys-Harper means that no complaint about acts or events of sex (or indeed race) discrimination post termination of employment will be entertained by Employment Tribunals other than complaints of victimisation. The decision in Adekeye v The Post Office (No2) 1997. IRLR 105 remains good law in the context of complaints brought under the Sex Discrimination Act 1975 and the Race Relations Act 1976. The words in both statutes "employed by him" (section 6(2) SDA and section 4(2) RRA) mean that there is no protection for those no longer employed.

For advisors, the decision means that it is essential to make sure that any complaints of sex (or race) discrimination are raised before the employment has terminated and not do as Mrs Rhys-Harper did which was to raise her complaints after the dismissal had taken place about events after the dismissal had occurred.