14 February 2012 #Employment
The employment tribunal in the case Jessemey v Rowstock Ltd and another has held that an employer cannot be liable for acts of victimisation after the employee`s employment has been terminated.
In this case, Mr Jessemey had been dismissed and he subsequently brought claims against his employer for unfair dismissal and age discrimination. Shortly after bringing his claims, and (importantly) after his employment had been terminated, the employer provided an unfavourable reference to Mr Jessemey’s recruitment agency. Mr Jessemey claimed that this act amounted to unlawful victimisation.
The tribunal judge held that the unfavourable reference was an act of victimisation and resulted from Mr Jessemey’s tribunal proceedings. The judge found that the reference was so unfavourable that it would deter virtually any employer from offering Mr Jessemey employment. However, the judge went on to say that because of the drafting of the Equality Act 2010, the tribunal cannot consider any remedy for the act of victimisation. The judge highlighted that under the Equality Act 2010, employees are entitled to bring claims against their former employer for acts of discrimination and harassment that have occurred after the employment relationship has ended but the Equality Act expressly excludes acts of victimisation. Accordingly, Mr Jessemey did not have a claim for unlawful victimisation.
This judgment shows how the position has changed since the introduction of the Equality Act. Prior to the Equality Act, tribunal decisions indicated that acts of victimisation post-employment are unlawful. Mr Jessemey did not seek to rely on these earlier decisions to persuade the tribunal that there should be a remedy for the act of victimisation. Until the wording of the Equality Act is amended or until further case law in a higher court confirms otherwise, it appears for now, that employers cannot be liable for acts of victimisation post-termination of employment. This is an odd situation, which may not have been the intention of parliament and Tribunal’s may try and find ways around this issue in their interpretation of the statute or through relying on other case law to protect Claimants. Employers should remain careful not to discriminate or victimise or harass ex employees have made discrimination allegations, or assisted with such proceedings or sued over such allegations.