Jones v 3M Health Care Limited and other appeals (2001) EAT 11 December 2001
Fadipe v Reed Nursing Personnel IDS Brief 702 February 2002
Recently there have been a number of cases which have considered whether Employment Tribunals have jurisdiction to deal with post employment discrimination.
In Jones v 3M Healthcare Limited & Others, the Employment Appeal Tribunal was asked to consider whether Employment Tribunals had jurisdiction to hear complaints in a number of cases of disability discrimination or victimisation falling within the provisions of the Disability Discrimination Act 1995 (DDA), where the events complained of occurred after the relationship of employer and employee had ceased.
Mr Jones suffered severe clinical depression. His employment with 3M Healthcare Limited ended in November 1997. He lodged his IT1 claiming disability discrimination and victimisation had occurred on or after 12 January 2000. In another case, Mr Kirker, who was blind, lodged an IT1 alleging victimisation on 10 November 1999. He stopped working for the Respondent, British Sugar Plc in March 1997. British Sugar had been asked to provide a reference. They did not and as a result a prospective application failed because of lack of information on his recent work history. Similarly Ms Bond, another Applicant, was not provided a reference by her former employer. In the matter of Mrs Angel, she believed she had been victimised as her former employer allegedly gave her adverse references. These Applicants all brought claims under the DDA.
Although the EAT admitted that the relevant provisions in the SDA and RRA were ambiguous, they concluded that claims could only be made by persons employed by the Respondent employers at the date of the discriminatory event. The only exception stemmed from Coote v Granada Hospitality Limited [1999] IRLR 452, in which the European Court of Justice held that an employer cannot refuse to grant a reference where this amounts to victimisation following a complaint of Sex Discrimination.
The EAT decided in these cases that there was no such ambiguity in the DDA. The EAT concluded that the DDA had never been intended to cover post termination events and that if it did it would be reasonable to expect to find some provision in the DDA to ensure that post termination events referable to an early employer-employee relationship can be asserted as discrimination.
The EAT further stated that an employee who has either denied a reference despite asking for one after his employment has ceased or been given a false and misleading one, was not bereft of a remedy: there is a duty of care on the employer's part to provide a reference which is neither false nor misleading, a breach which is actionable in the ordinary courts as negligence. The EAT was also asked to consider the effect of the European Convention on Human Rights, but they stated that the obligation was not in absolute terms to read and give effect to domestic legislation in a way which was compatible with convention rights but to do so only 'so far as it was possible to do so'.
In Fadipe v Reed Nursing Personnel, the Court of Appeal held that an employee who made a complaint to his employer concerning health and safety at the workplace could not later complain when his employment had ended, that he had been subjected to a detriment because his employer provided him with an unsatisfactory reference. It is stated in Section 44 of the Employment Rights Act 1996 protects employees from being subjected to detriment only while their employment continues.
Unfortunately, for now, there is very little former employees can do to address discrimination that occurs after their employment has ceased with an employer. But the House of Lords will hear appeals on the issue this year and the government will change the law in line with sex discrimination to comply with the Race and Employment Directives.