Post-employment victimisation is unlawful

Posted by Natalie Painter on
The Court of Appeal (CA) has delivered its judgment clearing up the confusion surrounding whether or not post-employment victimisation is unlawful.  Following two conflicting EAT judgments the CA was asked to address decisively what was considered to be a significant drafting error in the Equality Act 2010.

In the first post-employment victimisation claim last year, Rowstock Ltd & Davis v Jessemey (Rowstock), the EAT decided that the Equality Act did not cover an employee who had been given an unfavourable reference by his former employer because of an age discrimination claim he had previously brought. 

However, several months later a differently constituted panel in the EAT ruled in Onu v Akwiwu that post-employment victimisation was unlawful where an employer had allegedly made threatening phone calls to an ex-employee and her sister due to discrimination claims she had pursued.

Both cases went to the CA to resolve the conflict and the CA has now handed down its judgment in Rowstock.  Its decision in Onu v Akwiwu will follow after consideration of further separate issues in the case. This judgment has clarified that post-employment victimisation is unlawful, and has overturned the original judgment in Rowstock. 

This outcome was expected by most who have been following this case carefully. 

Prior to the introduction of the Equality Act 2010, post-employment victimisation was unlawful. This meant that an employee could bring a claim for victimisation for acts committed by a former employer after their employment ended. 

However, when the Equality Act came in, the wording of the legislation protected employees against discrimination and harassment from their former employers under s108, but it specifically excluded victimisation.

The CA has come to the conclusion that this was a drafting error and it was not Parliament's intention to remove the protection of post-employment victimisation from employees.  Additionally, if the Equality Act did not cover post-employment victimisation, then the UK would be in breach of EU law. 

The CA, therefore, judged that it had a duty to interpret the legislation in line with EU law to ensure compatibility. It decided that there were no obstacles in the legislation which prevented it from doing so.  Having read the Explanatory Notes to the legislation it was clear that Parliament intended for the protection against post-employment victimisation to be covered by other provisions. 

However, as it was not clear which provisions these were, the CA concluded that by 'reading it into' s108 of the Equality Act, it was merely giving effect to Parliament's true intentions.

This decision clears up the law on post-employment victimisation and gives employers some much- needed certainty.  Employers should now be cautious that they, and their employees, do not treat ex-employees in any way which may be to their detriment (e.g. providing an unfavourable reference or exclusion from alumni benefits) because of allegations of discrimination that ex-employees may have made or pursued.

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Natalie advises employers at all stages of Employment Tribunal proceedings and regularly provides bespoke training to clients on a variety of matters such as equal opportunities and employment law updates.

Natalie Painter
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