Ex-employees bringing tribunal claims are protected against detrimental treatment by the Equality Act
Whether the Equality Act 2010 covers post-employment victimisation (treating employees unfavourably because they have brought a tribunal claim) has been a matter of ambiguity for some time and there were conflicting decisions on this issue in the EAT last year.
Prior to the Equality Act coming into force, ex-employees were expressly protected against victimisation at the hands of their former employers. Although the Act does protect former employees from post-employment discrimination and harassment, there is no express protection against post-employment victimisation. But now the Court of Appeal has held, in the case Rowstock v Jessemey, the legislation can be interpreted to provide this protection.
EAT
Jessemey had been dismissed and brought age discrimination and unfair dismissal claims against his employer. Shortly afterwards, the employer provided an unfavourable reference for Jessemey to an employment agency - so he brought a victimisation claim as well.
When the Employment Appeal Tribunal heard the case, it concluded that the Equality Act did not provide protection against post-employment victimisation. Although the EAT conceded that it was “highly unlikely” that the government had intended to fail to provide this protection, it concluded that a literal reading of the Act’s wording indicated that this was just such a failure. And while it was sometimes possible for courts to read words into legislation to ensure compliance with EU law, the EAT felt this would amount to deciding that the Act “means the exact reverse of what it says”.
In another case heard around the same time, Onu v Akwiwu, a differently constitutedEAT decided the provisions did cover post-employment victimisation. One reason for this was that when the Act was drafted, there was no suggestion from the government that there was to be a dramatic shift in the law. If the Act could not be read in this way, the EAT concluded there was ‘sufficient ambiguity’ for it to be interpreted in the light of EU law which expressly prohibits post-employment victimisation.
CA
In coming to its conclusion that post-employment victimisation was covered by the Act, Court of Appeal judge Lord Justice Underhill noted that post-termination victimisation was unlawful at the time the Act was drafted following amendments to discrimination legislation in 2003. This was as a result of another case law judgment in which the House of Lords decided there was no rational basis for withdrawing the statutory protection against discrimination, including victimisation, arising out of the employment relationship when that employment had terminated. The intention of the Act was to re-state the existing protections against discrimination, victimisation and harassment, with some clarifications and enhancements, and give effect to EU legislation. He stated that it was clear that the provisions contained in the legislation applied to acts of victimisation both during and after the end of the employment relationship. It followed the Act’s failure to prohibit post-termination victimisation was a drafting error.
Lord Justice Underhill also advocated following the broad and far-reaching interpretation of UK statutes implementing EU law taken by the House of Lords in other case law. He held it was possible to imply words into the Act to prohibit post-employment victimisation as this would “not only be consistent with the fundamental principles of the Act and go with its grain: it in fact represents what the draftsman intended”.
Comment
The CA's decision makes it clear employers that give poor references to former employees because they have been involved in a complaint of discrimination will be liable to pay them compensation under the Act. Employers should exercise caution when providing references for ex-employees who have raised complaints of discrimination to ensure they do not subject these individuals to a detriment and lay themselves open to potentially expensive claims of post-employment victimisation.
Richie Alder is an employment partner at Trowers & Hamlins
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