15 March 2013 #Employment
The EAT has held that the Equality Act 2010 does not provide protection against victimisation which occurs after the employment relationship has ended. Therefore an employee could not succeed with a victimisation claim based on an unfavourable reference provided by his former employer.
Under the EqA 2010, victimisation occurs where a person (A) subjects another person (B) to a detriment because B has done, or A believes B has done or may do, a protected act, which includes bringing proceedings under the EqA 2010. Pre-EqA 2010 discrimination legislation expressly protected former employees against victimisation by their former employers where the acts complained of arose out of the employment relationship. However, although the EqA 2010 expressly protects former employees from post-employment discrimination and harassment, it does not protect against post-employment victimisation.
In the case of Rowstock Ltd and another v Jessemey the claimant was dismissed by his employer, Rowstock, and brought age discrimination and unfair dismissal claims against it. Shortly afterwards, Rowstock provided an unfavourable reference for the claimant to an employment agency, and so the claimant brought a victimisation claim as well.
Whilst the Tribunal accepted that Rowstock had provided the unfavourable reference because of the discrimination proceedings against it, which amounted to victimisation, his claim could not succeed because post-employment victimisation is not prohibited under EqA 2010.
The claimant appealed and the Equality and Human Rights Commission intervened on his behalf, arguing that if the tribunal`s decision were upheld, UK law would not be compliant with EU law, and the government would have to amend the EqA 2010. However, the EAT upheld the tribunal`s decision, holding that although it is highly unlikely that Parliament intended the EqA 2010 to fail to provide for protection from post-employment victimisation, the EqA 2010, read literally, does exactly that.
If the EAT is right then the EqA 2010 contains a drafting error and is not currently compliant with EU law, so an amendment will be required.
However we are awaiting judgment from the EAT on another case, Taiwo v Olaigbe and ors, which was heard around the same time as this case and dealt with the same issue. In this case a live-in nanny complained of victimisation as her former employer had sent documentation to the UK Border Agency regarding her immigration status. The Tribunal held that the exclusion of post-employment victimisation under the EqA 2010 must be a drafting error and adopted a purposive interpretation, meaning that the prohibition of victimisation could be read as applying to former as well as current employees. It will be interesting to see whether the EAT upholds that Tribunal’s decision, or follows the same reasoning as in the Jessemey case.