Two recent EAT decisions have reached opposite conclusions on whether the Equality Act 2010 covers victimisation after an employee has left employment. This aspect of discrimination law has given rise to some confusion because the Equality Act specifically excludes the right to bring post-employment victimisation claims. It appears that this is a drafting error, since prior to the Equality Act, victimisation taking place after employment ended was clearly covered by UK discrimination law. It is also a requirement of EU law.
In the first case, Rowstock Ltd v Jessemey, Mr Jessemey was dismissed by reason of retirement. He subsequently brought age discrimination and unfair dismissal claims. Rowstock then provided a poor reference about Mr Jessemey to an employment agency, after which he brought a further claim for post-employment victimisation. The EAT agreed that he had been given the poor reference because he had brought a discrimination claim but held that, on a literal interpretation, the Equality Act did not protect post-employment victimisation. Whilst acknowledging that this was probably a drafting error, the EAT said that it was not legally possible to rule in his favour.
By contrast, in the later case of Onu v Akwiwu, the EAT held that individuals are protected against post-employment victimisation. Ms Onu, a Nigerian domestic servant, brought various Tribunal claims against her former employer, including a race discrimination claim. The employer later telephoned Ms Onu's sister, threatening that if the Tribunal proceedings did not stop, Ms Onu "would suffer". Ms Onu then brought an additional claim of post-employment victimisation based on this threat which was unsuccessful in the Employment Tribunal. However, in a rather creative judgment, the EAT overturned this decision, ruling that protection from victimisation was clearly intended to apply both during and after employment despite the wording in the Equality Act stating otherwise. It also held that because of the ambiguity in the legislation, the Equality Act should be read in line with the spirit of the underlying EU Directive which requires post-employment discrimination to be prohibited.
This issue should be clarified following Mr Jessemey's appeal to the Court of Appeal which is being backed by the Equalities and Human Rights Commission. In the meantime, it is prudent to assume that post-employment victimisation is protected when dealing with former employees.
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