December 08, 2006

So they never gave you a [good] reference... Well, make sure you hit back hard!

Relaxion Group Plc -v- Rhys Harper

June 2003 The Court of Appeal ruled that an ex-employee should be able to bring a claim of discrimination even after the employment has ended, for post-termination detriment.

Employers could now face discrimination claims from past employees who are, for example, dissatisfied with a reference provided or the lack of a reference - or even the way that an appeal against dismissal or some other post employment investigation has been conducted.

The Lords ruled that where 'the relationship between employer and employee is still continuing, notwithstanding the termination of employment, it should still attract protection'. The issue lies in identifying when the relationship is still continuing.

Whistleblowing Provisions Apply to Post-Employment Detriment

The Court of Appeal has held the "whistle-blowing" provisions in the Employment Rights Act (ERA) which protect workers from detrimental treatment where they have blown the whistle also cover detriments suffered post termination.

The Claimant, Mrs Woodward, was employed by Abbey National's Treasury Services from 1991 until she was made redundant in 1994. In January 2003, Mrs Woodward made a complaint of detrimental treatment. She argued that her ex-employer's refusal to provide an employment reference was due to the fact that she had made a protected disclosure under the "whistle-blowing" provisions of the ERA whilst she was still employed by the Respondent.

The Court of Appeal had previously ruled that ex-employees could not rely on the "whistle-blowing" provisions of the ERA as the legislation only protected employees against detriments suffered whilst in employment.

However, the House of Lords had subsequently ruled that victimisation claims under discrimination legislation could be brought by ex-employees. The Court of Appeal was faced with the task of deciding whether these two decisions could be reconciled and it essentially decided that they could not: the Court considered that complaints of detriment under the "whistle-blowing" provisions of the ERA dealt with the same concept as victimisation complaints under discrimination legislation.

The Court of Appeal overturned its earlier decision and held that the provisions protecting against detriment in the ERA should be interpreted so as to afford protection to employees suffering a detriment after the termination of their employment.

The provisions in the ERA dealing with protection from suffering detriment in employment extend beyond whistleblowing cases and cover matters such as jury service, health and safety and working time. The decision in this case will extend to all cases of detrimental treatment under the ERA and employers will therefore need to ensure that procedures are in place to prevent detrimental treatment after termination.

One of the most likely cases where employers are at risk of subjecting former employees to detrimental treatment will be in relation to the provision of references.

Woodward v Abbey National Plc

The Court of Appeal has held that an Employment Tribunal does have jurisdiction to consider a complaint by a former employee that she suffered a detriment as a consequence of her employer failing to provide her with a reference (albeit eight years after her employment terminated) on the grounds that she blew the whistle whilst employed.

Since the House of Lords decision in Rhys-Harper, it has been clear that former employees can bring claims under the discrimination legislation in relation to events that took place after the termination of their employment in certain circumstances. Now, the Court of Appeal has ruled that former employees can similarly, in certain cases, bring claims under the Employment Rights Act 1996 - and which may extend beyond blowing the whistle to a detriment suffered as a result of raising concerns in relation to health and safety, working time etc.

Accordingly, additional care must now be taken in the treatment afforded to former employees where the circumstances are such that the former employee may be able to rely on protection afforded by the Employment Rights Act 1996. Employers should review their policies on giving references (or any other actions post termination) carefully to ensure that it is applied consistently across the board.

Post-termination discrimination

This case concerned an issue commonly faced by HR managers, namely that of giving references for employees post-termination. It has been possible for an employee to make a claim against a former employer in relation to detriment suffered where the discrimination arises out of, and is closely connected to, an employment relationship that has come to an end. The questions raised by this case were how long does that obligation last for and does it apply to both solicited and unsolicited information?

Shoebridge was employed by the Metropolitan Police Service (the Met) until October 2001. During his employment, he had made a successful complaint of sex discrimination. After leaving the Met he worked for a number of other organisations before providing his services to Sky News Television. Some 14 months after he left the Met, his arrangement with Sky ended abruptly, allegedly as a result of the Met suggesting to Sky that Sky should no longer engage him. Shoebridge subsequently commenced proceedings against the Met for victimisation. He claimed that unsolicited statements made by the Met had led to the termination of his arrangement with Sky.

The question was, did the Tribunal have the jurisdiction to hear the complaint? The Met sought to make a distinction between unsolicited comments and those given in response to reference requests. The EAT did not agree that such a distinction should be made and held that unsolicited comments would fall within the Employment Tribunal's jurisdiction.

The second point was whether or not the elapsed time since dismissal affected the situation. The Employment Appeal Tribunal again found in favour of Shoebridge on this point, determining that an employee has the expectation of non-discriminatory conduct by a former employer whenever the former employer is discussing the employee. It was decided that the Employment Tribunal did have jurisdiction to hear the case.

In considering the issues, the Employment Appeal Tribunal suggested that, when dealing with this question, the Tribunals should consider whether there is a substantial connection with the employment relationship or a sufficiently close connection with the employee. The important point to remember is that employers must always consider the comments given in respect of employees, regardless of when the employment terminated.

So they never gave you a [good] reference... Well, make sure you hit back hard!

No comments: