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Tribunal finds post-termination victimisation claims covered by Equality Act 2010

An Employment Tribunal has found that a claimant can raise a post termination victimisation claim under the Equality Act 2010.

Case law had established that the pre-Equality Act legislation did allow ex-employees to bring victimisation claims. So, for example, if an employee was dismissed by his employer and raised a discrimination claim, and his former employer then refused to provide him with a reference because of this, he could raise a victimisation claim.

However, when the Equality Act came into force it seemed that a stop had been put to these kinds of claims. This is because, whilst section 108 of Act expressly provides for post employment discrimination and harassment claims, it does not state that victimisation claims are covered. In fact, section 108(7) actually states that “conduct is not a contravention of this section in so far as it amounts to victimisation”.

Nevertheless, the Tribunal in Taiwo v Olaigbe & Others has found that claimants can bring victimisation claims after the termination of their employment. A nanny working under a migrant visa raised a discrimination claim after leaving her job, in response to which her employer sent the Tribunal bundle to the UK Border Agency and requested they revisit her immigration status. She then tried to raise a victimisation claim. The judge applied a purposive approach and went beyond the ordinary rules of statutory interpretation. He took into account the fact that, during the implementation of the Act, the Government Equalities Office had stated that it continued to protect against post-employment victimisation. He said that the apparent the lack of protection on a literal reading of the legislation must be an error on the part of the legislators.

This decision seems to have adopted a sensible, practical approach to the issue of post employment victimisation. It’s not clear why former employees should be able to bring discrimination and harassment claims, but not victimisation claims, particularly when the case law interpreting the previous legislative framework covered victimisation claims and the intention of the Government seems to have been to preserve this. Nonetheless, it is worth bearing in mind that this is a Tribunal as opposed to appellate decision, taken at a Pre Hearing Review. Therefore, the decision may not be the last word on this matter.

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