Under the Equality Act 2010 individuals are protected from victimisation and as a result an individual who undertakes a “protected act” is protected from being treated to a detriment by their employer as a result of that act.
A “protected act” covers acts such as raising a discrimination claim, complaining about harassment or discrimination, or getting involved in some other way in another employee’s discrimination complaint.
Since the Equality Act 2010 came into force there has been some uncertainty as to whether the Act prohibits acts of victimisation that take place following the termination of employment. Prior to the Equality Act coming into force the earlier discrimination legislation expressly stated that former employees were protected against victimisation by their former employers following the termination of their employment. The Equality Act, however, does not include such express protection. In fact, whilst the relevant section of the Equality Act confirms that post-termination harassment and discrimination is unlawful, it states that post-termination protection does not extend to victimisation. This is, therefore, a contradiction to the protection that had been afforded to individuals under the old discrimination legislation and this has caused uncertainty as to whether this was in fact what Government had intended.
The case of Jessemey –v- Rowstock Limited  EWCA Civ 185 has however brought an end to this uncertainty as it has held that, despite the wording of the Equality Act, post-termination victimisation is unlawful.
In this case Mr Jessemey’s employment with Rowstock was terminated on the grounds of retirement following which Mr Jessemey brought claims for unfair dismissal and age discrimination.
Mr Jessemey then tried to find alternative work with the help of a recruitment agency and, when the agency approached Rowstock for a reference in respect of Mr Jessemey, Rowstock gave a very poor reference. Mr Jessemey felt that the only reason Rowstock had provided him with an unsatisfactory reference was that he had issued proceedings and, therefore, also made a claim for victimisation under the Equality Act.
In the first instance the Employment Tribunal held that whilst it felt Mr Jessemey had been victimised by Rowstock, his claim could not succeed due to the express provision of the Equality Act which provides that post-termination victimisation is not unlawful. On appeal the Employment Appeal Tribunal upheld this view. Mr Jessemey then appealed to the Court of Appeal.
The Court of Appeal overturned the EAT’s decision. Whilst the Court of Appeal conceded that the wording of the Equality Act did not cover post-termination victimisation it held that the Act needed to be read in the context in which it was produced. The relevant EU legislation prohibited post-termination victimisation and post-termination victimisation was unlawful within the UK at the time the Equality Act was drafted. Therefore, given that there was no rational reason for treating post-termination victimisation differently to post-termination discrimination or harassment, the Court of Appeal held that the failure to include post-termination victimisation within the prohibitions under the Equality Act must have been a drafting error.
As a result the Court of Appeal held that post-termination victimisation must be prohibited by the Equality Act 2010. As the Company had issued an unfavourable reference in respect of Mr Jessemey on the sole basis of his decision to issue proceedings against the Company, it had committed an act of victimisation contrary to its obligations under the Equality Act 2010.
This case therefore brings some welcome clarification to the issue of post-termination victimisation. It is also a reminder to employers that, even though an individual is no longer in employment, they may still be able to bring a claim against their former employer if, after their employment has ended, they are subjected to a detriment because of a “protected act”.
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