04 October 2012 #Employment
In the case of Taiwo v Olaigbe and others it was held that a claimant can pursue a claim of victimisation concerning matters after termination of employment under the Equality Act 2010. Victimisation claims are brought where employees allege they have been subjected to a detriment because they have brought a complaint of discrimination.
It was noted that section 108 of the Equality Act 2010, which renders post-employment discrimination and harassment unlawful, expressly did not apply to acts of victimisation. However, it was held that this was a drafting error. Applying a purposive approach to the legislation to give effect to EU law, the judge interpreted the Equality Act 2010 victimisation provision in section 39 as protecting former employees as well as current ones.
In this case Ms Taiwo was employed by Mr and Mrs Olaigbe as a nanny and housekeeper, and was working under a migrant worker visa. In suffering abuse from her employers, Ms Taiwo was forced to leave her employment. She brought a race discrimination claim against them (which was ultimately unsuccessful). During an adjournment of the race discrimination proceedings, the employers sent the trial bundle to the United Kingdom Border Agency and requested that they revisited Ms Taiwo`s immigration status. Ms Taiwo brought a fresh claim, arguing that the employers` actions in this regard amounted to victimisation contrary to the Equality Act 2010. The employers argued that this claim should be struck out because section 108(7) of the Equality Act 2010 expressly excludes post-employment victimisation complaints.
At a pre-hearing review, Ms Taiwo`s post-employment victimisation claim was allowed to proceed because section 108 of the Equality Act 2010 grants the right to bring complaints of post-employment discrimination and harassment, but not post-employment victimisation. However, this appeared to be a drafting error. One would expect the Equality Act 2010 to maintain the status quo unless the government announced a contrary intention (which it did not). It was concluded that it was appropriate to "apply a purposive interpretation and go beyond the ordinary rules of statutory construction" and conclude that the Equality Act 2010 victimisation provisions apply to former employees.
Although this only a decision of an employment tribunal and may be appealed, it is likely that the tribunal’s interpretation is correct and will be upheld. Employers should be careful not to act in a way towards former employees which could be construed as victimisation where employees have complained of discrimination during their employment.