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 subsection 8(7) of the Act excludes victimisation. In Onu v Akwiwu, the Employment Appeal Tribunal (EAT) held that there would be no point to section 108(7) if there was no right to sue for victimisation, post-termination of employment.
Ms Onu, a Nigerian woman, started work as a domestic servant for the Akwiwus in Lagos in February 2007. She travelled with the family to the UK in July 2008 and on four or five occasions returned with them to Lagos.
Whilst living in London with them she worked, on average, about 84 hours per week. She was paid about £50 per month during the first year, rising to £150 in January 2010. The family also held her passport. On 28 June 2010, a day after Mrs Akwiwu had been angry and threatening towards her, she took her passport back and walked out of the house, never to return.
She lodged a number of different tribunal complaints, including one claiming victimisation. This related to a telephone call allegedly made by Mr Akwiwu to Ms Onu’s sister in Nigeria six months after she stopped working for them, in which he said that Ms Onu should withdraw her complaints if she didn’t want to “suffer for it”.
The Akwiwus argued that post employment victimisation claims were expressly excluded by 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“.
The tribunal upheld most of Ms Onu’s claims, but dismissed the complaints that she had been indirectly discriminated against on grounds of race, and had been victimised after her employment had come to an end because she had brought proceedings against the Akwiwus.
Among the subsequent appeals and cross-appeals, Ms Onu appealed the finding that she had not been victimised.
The EAT noted that, although the Equality Act did not expressly cover victimisation post-termination of employment, the European equal treatment directive (on which it was based) did.
It also pointed out that the House of Lords had agreed in Rhys-Harper v Relaxion Group that it should be covered and the code of guidance to the Equality Act accepted that was the effect of the Act. Nor was there any material to indicate that parliament was aware it was enacting such a dramatic shift in the law when it passed the Act.
The question now was how to interpret the Equality Act. The EAT held that it had to be approached in two stages - firstly as a purely domestic statute and then in accordance with the UK’s obligations under the directive if it turned out to be defective.
Turning first to the Equality Act, the EAT held that there would be no point to section 108(7) if there was no right to sue for victimisation after the relevant employment relationship had come to an end. The subsection only made sense if the person drafting the law had assumed that victimisation that occurred post-termination could be the subject of a claim.
In addition, the EAT said that it was difficult to understand why the statute should refer to conduct that “also” amounts to victimisation if a claim for victimisation could not be pursued, post-termination.
The EAT therefore decided in Ms Onu’s favour.
As there are now two inconsistent EAT decisions, permission to appeal to the Court of Appeal in Onu was granted. Hopefully the Court of Appeal will agree with the president of the EAT in this case, but a legislative correction would be clearer.