Before the Equality Act 2010 came into force “post-employment discrimination” was recognised as a legitimate claim. Indeed under the old discrimination regime involving alleged acts of post employment victimisation, we all recall the newspaper headlines reporting on claims related to ex-employers’ conduct in respect of references where the ex-employee had raised discrimination proceedings.
However, the Equality Act has expressly excluded post-employment victimisation complaints. The recent case of Taiwo –v- Olaigbe and others has now met this issue head on.
The fact of this case are as follows: Ms Taiwo left her employment and made a claim for race discrimination against her former employers; during an adjournment of the claim, her former employers sent the trial bundle to UK Border Agency requesting that Ms Taiwo’s immigration status be reconsidered; whilst the claim for race discrimination was ultimately unsuccessful, Ms Taiwo brought a fresh claim on the basis that her employer’s conduct in sending the trial bundle to the UK Border Agency amounted to victimisation under the Equality Act 2010.
Given post-employment victimisation complaints are expressly excluded from the Act, the employer requested that the subsequent claim be struck out. However, the judge considered this exclusion to be a drafting error as previous legislation provided former employees with this protection and the EHRC Employment Statutory Code of Practice suggested that post-employment victimisation should be covered by the Act.
To deal with this, the judge applied what is known as a “purposive approach” to the legislation and concluded that the victimisation provisions within the Equality Act could apply to former employees. Ms Taiwo’s claim was allowed to proceed as there was no logical reason to remove this protection. When courts or tribunals apply a purposive approach, this means they are not restricted to the actual wording of the national legislation. Because the Equality Act implements a European Directive, it is presumed that, in implementing European law, Parliament intended it to comply with the relevant directive. Courts and tribunals can therefore add words to give effect to this even if this means changing the natural meaning of the words used in the legislation, provided it does not alter its underlying thrust or purpose.
This common sense approach adopted by the judge appears to be consistent with the objects of the Act and in the absence of an appeal against this decision, it is likely an amendment to the Equality Act 2010 could be considered. This would be welcomed as it would provide clarity for everyone going forward.