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Court of Appeal rules that Equality Act 2010 covers post-employment victimisation

The Court of Appeal has recently decided that the Equality Act 2010 should be read to cover post-employment victimisation. This should clear up the uncertainty caused by conflicting Employment Appeal Tribunal decisions on this issue.

In Jessemy v Rowstock Limited (an age discrimination case), the EAT upheld an Employment Tribunal’s decision that the Act does not cover post-employment victimisation. In the race discrimination case of Onu v Akwiwu, however, the EAT held that post-employment victimisation is covered. The ultimate source of the uncertainty was the wording of the Act itself: whilst section 108 prohibits post-employment discrimination and harassment, section 108(7) states that “conduct is not a contravention of this section in so far as it also amounts to victimisation”.

In deciding the employee’s appeal in Jessemy, the Court of Appeal accepted that the Act’s wording – read on its own without any context – does not cover post-employment victimisation. The Court decided, however, that given the context to the Act this was clearly not the result that the parliamentary draftsman intended. In particular, the Court took into account:

  • at the time the act was drafted, post-employment victimisation was unlawful (Rhys-Harper v Relaxion Group plc);
  • there was nothing suggesting that the government intended to change to law and remove this protection;
  • the Act’s explanatory notes suggested that post-employment victimisation was to be covered;
  • if it was not covered, the UK would be in breach of EU law; and
  • there is no rational basis for treating post-employment victimisation differently from post-termination discrimination and harassment.

This decision clarifies that, despite the wording of the Equality Act 2010, post-employment victimisation remains unlawful. The facts of Jessemy illustrate that one scenario which could give rise to such a complaint is an employer providing an unfavourable reference to a former employee who previously complained of discrimination.

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