Victimisation Taking Place After Termination is Unlawful
The question of whether post-termination victimisation is unlawful under the Equality Act has been considered by the EAT for a second time and this time it has ruled that it is.
EU law requires that employees should be protected against victimisation which takes place after employment has terminated and before the Equality Act 2010 was enacted, the discrimination legislation clearly made this unlawful. Due to the drafting of the relevant provisions of the Equality Act, the question of whether it protects against post-employment victimisation has been open to doubt. Earlier this year, the EAT ruled in Jessemey v Rowstock that it does not. However, the question has come before the EAT again in the case of Onu v Akwiwu.
This time the EAT came to the opposite view, ruling that the Equality Act does protect against post-termination victimisation. It said that the natural meaning of the Act suggests that post-employment victimisation claims are permitted and even if this were not the case, the wording is sufficiently ambiguous to enable the provisions to be interpreted purposively so that they are permitted, as EU law requires.
The EAT accepted that it should not depart from its previous decision unless it was persuaded that it was wrong. However, it decided that it was wrong. We now have two conflicting decisions at EAT level. However, it seems likely that tribunals will follow the decision in Onu as the EAT expressly stated that it considered its earlier decision to be wrong, and because it is a judgment of the President of the EAT and so is likely to carry more weight. However, an appeal in the Jessemey case is due to be heard by the Court of Appeal at some point between July 2013 and January 2014 where hopefully the question will be resolved once and for all.
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