Plug that gap

Section 108 of the Equality Act 2010 outlaws discrimination post-termination of employment when closely connected to the person’s job. However, it is not clear whether it also expressly excludes victimisation. In Rowstock Ltd v Jessemey, the Employment Appeal Tribunal (EAT) held that it did not, saying that it created a gap in the law which only parliament could rectify.

Basic facts

Mr Jessemey started work for Rowstock Ltd as a car body repairer in March 2008. A year after his 65th birthday in January 2010, the company told him it did not want to employ anyone over 65 and gave him two weeks’ notice of termination which it paid in lieu.

He claimed unfair dismissal and age discrimination. A year later, in February 2011, the company gave a very poor reference about him to an employment agency which he said was post-employment victimisation by the company because he had brought an unfair dismissal claim.

The company said he could not claim victimisation because of section 108(7) of the Equality Act which states that “conduct is not a contravention of this section insofar as it also amounts to victimisation“.

Tribunal decision

The tribunal said that the dismissal was automatically unfair as the company had failed to comply with the statutory procedure. As the dismissal was because of his age, the tribunal was satisfied that it amounted to unlawful age discrimination.

It also agreed with Mr Jessemey that the company had given him a poor reference because he had brought a tribunal claim and that “the content was such that no employer would hire on such a reference”. However, it could not hear this claim as section 108(7) excluded claims of post-employment victimisation.

Mr Jessemey appealed on the basis that parliament could not have intended to remove protection against post-employment victimisation and that, in any event, the House of Lords had decided in the case of Rhys-Harper v Relaxion Group plc that tribunals can hear claims of post-employment discrimination.

EAT decision

The EAT held that although it was unlikely that parliament had intended to “legislate away (or fail to make provision for) any redress for post-employment victimisation”, the literal words of section 108(7) meant it was not covered.

As a result, there was a gap in the statutory scheme of protection from discrimination, harassment and victimisation which the UK was required by EU legislation to enact. The question facing the EAT, therefore, was whether it could legitimately “plug” that gap.

However, it refused to do so on the basis that it could not legitimately “repeal, delete, or contradict the language of the offending statute” as that would involve recasting parts of the 2010 Act.

Unlike Rhys-Harper, this was not a case when the court could extrapolate remedies for post-employment misconduct from a statutory scheme of protection for employees. Parliament had expressly provided “for the post-relationship landscape” but had expressly excluded victimisation. “In such a situation no judicial tool is available to make available a remedy which the words used by Parliament have simply stated shall not be available”.