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Case round-up

Previous Article Next Article Related posts:No related photos. Comments are closed. Case round-upOn 8 Jul 2003 in Personnel Today Caseround-up by Eversheds 020 7919 4500Post-employmentdiscriminationRelaxion Group plc v Rhys-Harper & other appeals, House of Lords [19June 2003] All ER(D)258Followingthis case, employers can now be held liable for acts of post-termination sex,race and disability discrimination. These three appeals concerned the issue ofwhether ex-staff could claim to have suffered a ‘detriment’ for the respectivepurposes of sex, race and disability discrimination legislation, in relation totheir employers’ conduct after the termination of employment. TheCourt of Appeal ruled in these cases that acts or events occurring afteremployment had ended could not amount to unlawful discrimination. The staff ineach case appealed against this decision.TheLords ruled that an employer could be held liable for acts of post-terminationdiscrimination. The proper interpretation of the legislation was that once twopeople enter into an employer/employee relationship, it is intended for theworker to be protected against discrimination by the employer in respect of allcircumstances arising from that relationship.Itmakes no sense to draw an arbitrary line between the time when the employmentcontract is in place, thereby providing the worker with protection againstdiscrimination, and the time when the contract ends, leaving them with none.However, the act must arise out of the employment relationship. One worker losthis appeal as his complaint related to his employer’s failure to comply with atribunal’s reinstatement order, which hadn’t arisen from the workingrelationship. TheRace Relations Act 1976 (Amendment) Regulations 2003, which is due to come intoforce on 19 July, will make post-termination racial discrimination andharassment unlawful.Noprotection for sexual orientationMacdonald v Advocate General for Scotland; Pearce v Governing Body ofMayfield School, House of Lords [19 June 2003] All ER(D) 259TheHouse of Lords has ruled that less favourable treatment by employers on thebasis of a worker’s sexual orientation does not amount to discrimination on thegrounds of sex for the purposes of the Sex Discrimination Act 1975.Thecourt considered two similar appeals. Pearce, a schoolteacher, regularlysuffered abuse from pupils for being a lesbian. She claimed that the school haddirectly discriminated against her under the Sex Discrimination Act 1975, byfailing to take adequate steps to prevent the abuse. Similarly, Macdonald wasforced to resign from the RAF after disclosing his homosexuality. He claimedhis employers had treated him less favourably than they would have treated awoman, in that a female comparator (a heterosexual woman) would not have beenforced to resign. He claimed this amounted to discrimination under the SexDiscrimination Act 1975. Bothappealed to the House of Lords against decisions dismissing their complaints.TheLords dismissed their appeals. The Sex Discrimination Act 1975 was not aimed atsexual orientation and the expression ‘on the grounds of her sex’ in section 1of the Act could not be interpreted to include sexual orientation. In bothcases, the Lords stated the appropriate comparator was a homosexual of theopposite sex, not a heterosexual. Pearce’sadditional argument that the name-calling would not have been directed at herhad she been a man, and that she therefore didn’t need to identify acomparator, was rejected.  The courtcommented the harassment was not aimed at her sex, but rather her sexualorientation.

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