Equality Act 2010 does not protect against post-employment victimisation, says EAT

age discrimination | Equality Act 2010 | post employment-victimisation

The Employment Appeal Tribunal (EAT) has held that the Equality Act 2010 cannot be interpreted to cover post-employment victimisation. 

Mr Jessemey brought a claim for victimisation under the Equality Act 2010 in relation to actions taken by his employer after he had lodged his tribunal claim for, among other things, age discrimination. The employer had provided an agency with an unfavourable reference. Mr Jessemey believed that the reference, which stated that the employer was "in a current industrial tribunal dispute" with him, gave him a poor reference because of the employment tribunal proceedings that he had initiated. 

In Jessemey v Rowstock and another ET/2700838/11 and ET/2701156/11, the employment tribunal concluded that it did not have jurisdiction under the Equality Act 2010 to hear Mr Jessemey's claim for victimisation in respect of the employer's actions after the end of the employment relationship. The employment tribunal noted that it could not consider Mr Jessemey's claim for victimisation because of the way in which the Equality Act 2010 was drafted. Section 108 provides that it is unlawful to discriminate against or harass anyone in a relationship that has ended. However, by virtue of s.108(7), the employer's conduct after the end of the claimant's employment cannot contravene s.108 insofar as it amounts to victimisation. Mr Jessemey appealed to the EAT. 

The EAT noted that there is a need for employment tribunals to take a consistent approach. The EAT highlighted the race discrimination case Taiwo v Olaigbe and another ET/2389629/11, in which the employment tribunal held that Ms Taiwo's claim for post-employment victimisation should be allowed to proceed. In that case, the employment tribunal concluded that the exclusion of post-employment victimisation in the Equality Act 2010 was clearly a drafting error and the Government had intended the status quo to be maintained when it merged equal opportunities legislation. It read the Equality Act 2010 to add the words "current and/or former employment" into the legislation. 

The EAT accepted that the history of post-victimisation claims from Coote v Granada Hospitality Ltd [1998] IRLR 656 ECJ to the introduction of the Equality Act 2010 demonstrates that it is "highly unlikely" that the Government intended to legislate away redress for this type of claim. 

However, the EAT concluded that any attempts by tribunals and courts to add additional wording into the Equality Act 2010 would represent an "incomplete recasting" of the Equality Act 2010 and could create unintended consequences. In cases like this, it is not the place of tribunals and courts to make available a remedy that the words used by Parliament have simply stated shall not be available, even when the absence of a remedy is through error or inadvertence. 

The EAT gave Mr Jessemey permission to appeal, given that s.108(7) is of considerable public importance and there is no Court of Appeal authority on this point. 

Additional resources

• Liveflo: Provide a reference on a former or current employee Use this flowchart on receiving a request for a reference for a former employee from a prospective employer. 
• Policy on giving references Use this model policy to provide a procedure to follow where a reference request is received in respect of a former or current employee. 
• Letter responding to a reference request explaining that the employer operates a policy of not providing references Use this model letter to write to a former or current employee's prospective employer explaining the reasons for a refusal to provide a reference. 

Case transcript of Rowstock and another v Jessemey and another (Microsoft Word format, 87K) (on the EAT website)