UK: Court Of Appeal Confirms That S.108(7) Of The Equality Act 2010 Outlaws Post-Termination Victimisation

The Court of Appeal ("COA") has confirmed that s.108(7) of the Equality Act 2010 ("EA 2010") which specifically excluded post-termination victimisation, could not have been Parliament's intention in light of: (i) the wide protection in the EA 2010, (ii) EU law prohibiting post-termination victimisation and (iii) case law at the time of the EA which determined that post-termination victimisation was not permitted. The exclusion was a drafting error.

In this case, former employee, Jessemey was dismissed on the grounds of retirement and claimed unfair dismissal and age discrimination. Rowstock Limited provided an unfavourable reference to an employment agency. When Jessemey became aware of this he issued a new claim for post-termination victimisation. The Employment Tribunal ("ET") found that Jessemey was unfairly dismissed and discriminated against because of age. However, it rejected his victimisation claim as s.108(7) (which deals with discrimination where the employment relationship has ended) specifically excluded post-termination victimisation in saying: "But conduct is not a contravention of this section in so far as it also amounts to victimisation."

On appeal, the Employment Appeal Tribunal upheld the ET's decision. However, it noted that EU law required protection against post-termination victimisation and that it could not have been Parliament's intention to remove such protection when it was already outlawed in case law (Rhys-Harper v Relaxation Group PLC [2003] ICR 867). That said, it took the view that there was no option available to it to remedy the statutory wording. Jessemey appealed to the COA.

After considering the fact that (i) post-termination victimisation was outlawed by the Rhys-Harper case, (ii) there being no indication that the Government intended to withdraw such protection, and (iii) the EU Equal Treatment Framework Directive (No. 2000/78) required protection against post-termination victimisation, the COA determined that the explicit wording in s.108(7) was a drafting error.

The COA determined that the words "In this sub-section, discrimination includes victimisation" should be incorporated at the end of s.108(1).

Jessemey v Rowstock Limited & Another [2014] EWCA Civ 185

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