No Protection Against Post-employment Victimisation
Victimisation which takes place after employment has terminated is not unlawful under the Equality Act 2010.
In Jessemey v Rowstock, J was dismissed by his employer and brought age discrimination and unfair dismissal claims. Shortly afterwards his employer provided an unfavourable reference to a prospective employer and he claimed this amounted to victimisation for bringing the tribunal claims.
The employment tribunal accepted the unfavourable reference was provided because he had brought the claims but decided that the relevant provisions of the Equality Act 2010 (“the Act”) do not prohibit post-employment victimisation. The claim therefore failed.
J appealed to the Employment Appeal Tribunal which upheld the tribunal decision. It noted that the Act expressly protects against post-employment discrimination, but expressly excludes post-employment victimisation from its protection. Whilst it was highly unlikely that Parliament intended not to provide redress for victimisation taking place after employment has terminated, the EAT did not feel able to construe the Act so as to provide post-employment protection as this would amount to deciding that the Act means the exact reverse of what it says.
There is clearly a drafting error in the Equality Act which needs to be rectified by Parliament. European law requires that protection is given for post-employment victimisation and UK law does not currently comply. It remains to be seen whether the Government will rectify the error via a last-minute amendment to the Enterprise and Regulatory Reform Bill which is currently before Parliament. In the meantime, employers should still be careful to avoid victimising former employees as the EAT decision in this case is unlikely to be the last word on the matter - Mr Jessemey has been granted leave to appeal to the Court of Appeal.
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