Victimisation post-employment

In the case of Jessemey v Rowstock, the Court of Appeal held that the Equality Act 2010 prohibits acts of victimisation post-employment. After Mr Jessemey pursued a claim for unfair dismissal and age discrimination against his former employer, he sought the help of an employment agency to find another job. His former employer then provided “a very poor reference” to the agency.

Following this, Mr Jessemey presented another claim, alleging victimisation, contrary to the Equality Act 2010. The Employment Tribunal upheld the claims of unfair dismissal and age discrimination. With regard to the victimisation complaint, whilst the Tribunal found that the reason for the bad reference was because he brought a claim for discrimination, it held that post termination victimisation was not unlawful. The Employment Appeal Tribunal reached the same conclusion on the basis that post termination victimisation was seemingly excluded from the legislation.

The Court of Appeal disagreed. Although ‘discrimination’ and ‘harassment’ were deemed to be unlawful acts against former employees, it was acknowledged that ‘victimisation’ was surrounded by ambiguity.

The Court of Appeal reasoned that before the Equality Act 2010 was drafted, it was already well-established in the existing law that post-employment discrimination- which included victimisation as a sub-species- was unlawful and that the European Court of Justice held in Coote v Granada Hospitality Ltd  that victimisation must apply to acts done after as well as during the employment.

It was further held that it was clear that the draftsmen of the legislation intended to include victimisation to apply to post-employment and that its apparent exclusion was clearly a drafting error, as “its purpose was to re-state existing protections against discrimination (including victimisation)”. It was also stated that the UK would be in breach of its obligations under EU law if interpreted otherwise.

The Court of Appeal concluded that this interpretation was not “inconsistent with a cardinal feature of the legislation”. The case is to be remitted to the Employment Tribunal for the assessment of compensation.

The case illustrates that employers should be mindful of the risks when supplying references for employees who have issued discrimination proceedings against them.

For further information on any discrimination law matter, please contact our employment solicitors on 020 3950 5234 or info@rllaw.co.uk