Can employers be held liable for alleged acts of discrimination that took place after the employment relationship with the employee concerned has ended? Until 19 June, 2003, the answer seemed as clear and unambiguous as the statutory language used in the race, sex and disability anti-discrimination legislation: an employer can only discriminate against someone ‘employed by him’ (Sex Discrimination Act 1975 and Race Relations Act 1976) or ‘whom he employs’ (Disability Discrimination Act 1995). Straightforward and unambiguous, one might suppose. However, this question must now be answered in the affirmative as result of the landmark judgment of the House of Lords in the conjoined appeals of Rhys-Harper v Relaxion Group plc, D’Souza v London Borough of Lambeth, Jones v 3M Healthcare and three other actions.
These six cases spanned all three anti-discrimination statutes. Rhys-Harper involved a complaint that the employer had failed to properly investigate a complaint of sexual harassment which had been made only after employment had been terminated on other grounds. D’Souza concerned a complaint that the employer had victimised the employee in failing to comply with a reinstatement order made by an Employment Tribunal. The remaining complaints were all of various forms of victimisation, primarily concerning the failure of an employer to provide a reference.
