In Rowstock Ltd –v Jessemey, the Employment Appeals Tribunal (EAT) has held that the Equality Act 2010 does not provide protection against post-employment victimisation, which is expressly excluded from provisions of the Act. This case follows a decision to the contrary made by a Tribunal in Taiwo –v- Olaigbe (see our blog post from 10 October 2012) in which a Judge interpreted the Act as including protection against post-employment discrimination.
Mr Jessemey was dismissed by his employer on the grounds of retirement shortly before his 66th birthday and brought a claim for age discrimination and unfair dismissal. Shortly after issuing proceedings, Mr Jessemey’s employer provided an unfavourable reference to an employment agency and as a result of this Mr Jessemey also brought a claim for victimisation.
The Tribunal found that Mr Jessemey’s dismissal was automatically unfair and discriminatory on the grounds of age but whilst it considered that the poor reference had been given as a result of the tribunal proceedings being issued, it had no jurisdiction to award any remedy for this because s.108 (7) of the Act expressly excludes post-employment victimisation.
Mr Jessemey appealed against the Tribunals’ rejection of the victimisation claim arguing that Parliament cannot have intended for the Act to prohibit post-employment victimisation claims and that the Act should be interpreted as providing protection against such victimisation owing to the requirements of EU law. The EHRC, intervening on Mr Jessemey’s behalf, argued that s108 (7) of the Act was a “legislative blunder” and that if the Tribunal’s decision was upheld, UK law would not be compliant with EU law and the Act would require amendment.
The EAT dismissed Mr Jessemey’s appeal, and adopting a literal interpretation of the legislation held that the Act expressly disapplies the concept of victimisation where the employment relationship has ended. Whilst the EAT considered it to be “highly unlikely” that Parliament ever intended to legislate away (or fail to make provision for) any redress for post-employment victimisation, it considered that interpreting the Act in the way the Judge had in Taiwo would mean deciding that the Act means the exact reverse of what it says. The EAT therefore concluded that the Tribunal’s decision to reject the claim for post-employment victimisation must be upheld but recognised the matter as one of importance and for this reason granted permission to appeal to the Court of Appeal.
In seeming to exclude post-employment victimisation from the protection of the Act, section 108 appears to contain a drafting error – most cases of “post-employment discrimination” under the previous discrimination regime involved alleged acts of victimisation, often relating to ex-employers’ conduct in respect of references. There was no logical reason to remove this protection and failure to include this in the Act leaves the UK open to challenge on the basis that the Act does not comply with EU law. Watch this space!