On the face of it, the wording of section 108(7) of the Equality Act 2010 means that post-termination victimisation is not unlawful. However, in Jessemey v Rowstock Ltd and anor, the Court of Appeal held that the section contained a drafting error as there was no rational basis for treating post-termination victimisation differently from post-termination discrimination and harassment.
Mr Jessemey worked for Rowstock Ltd, a small car sales and repair business in Didcot in Oxfordshire which was run by Mr Davis who was also the director.
He brought proceedings for unfair dismissal and age discrimination after being dismissed. He then discovered that Mr Davis had given him a very poor reference after he signed up to an employment agency to find other work. Mr Jessemey subsequently lodged another claim alleging victimisation contrary to the Equality Act 2010, arguing that his former employer had given him a bad reference because he had lodged a tribunal claim.
Tribunal and EAT decisions
The tribunal upheld his claims of unfair dismissal and age discrimination. However, although it found that the reason for the bad reference was because he had brought tribunal proceedings, it held that "post-employment victimisation" was not unlawful under section 108(7) of the 2010 Act. The EAT agreed, holding 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.
However, in a case decided two months later - Onu v Akwiwu (LELR weekly 320) - another EAT decided that the Equality Act did prohibit claims of victimisation against a former employee.
Section 108(1) states that a person must not discriminate against someone else if it “arises out of and is closely connected to a relationship which used to exist between them”. However, section 108(7) states that conduct which “also amounts to victimisation” does not contravene the Act.
Court of Appeal decision
The Court of Appeal agreed that, on a natural reading of the relevant provisions of the 2010 Act “and without reference to any contextual material”, it appeared that post-termination victimisation was not against the law. However, it was clear that was not the result which the draftsman intended once the following “contextual materials” were taken into account:
- At the time the 2010 Act was drafted the existing state of the law was that post-termination victimisation was unlawful
- There was no indication at that time that the government intended to change the law by withdrawing the protection previously enjoyed by former employees
- The explanatory notes to the Act suggest it was always intended that post termination victimisation would be prohibited
- If post-termination victimisation were not unlawful, the UK would be in breach of its obligations under EU law
- There was no rational basis for treating post-termination victimisation differently from post-termination discrimination and harassment (which is unlawful under the Act).
The Court therefore found that the apparent failure of the 2010 Act to prohibit post-termination victimisation was a drafting error, and that the Act should be construed as including this as an unlawful act. The victimisation claim therefore had to succeed and the Court remitted the case to the tribunal to make an assessment for compensation.
This decision finally clears up the position on post termination victimisation under the Equality Act 2010. The Act should be read as if such victimisation is unlawful and relevant claims, for example in relation to references which are negative because an ex-employee has alleged discrimination and brought a tribunal claim, can be pursued.