Post-Employment Victimisation – the case continues…

The issue of whether the Equality Act 2010 (EA 2010) covers post-employment victimisation has recently been reconsidered by the Employment Appeals Tribunal in Onu –v- Akwiwu and another. The EAT held that the natural meaning of the EA 2010 was that post-employment victimisation claims were permissible, reverting back to the previous decision in Taiwo –v- Olaigbe (see blog post dated 10 October 2012) and directly contradicting the later decision in Rowstock Ltd –v- Jessemey (see blog post of 25 March 2013).

Ms Onu was a Nigerian migrant worker who was employed as a domestic worker by Nigerian employers. After leaving their employment, Ms Onu brought various claims in the Employment Tribunal alleging she had been treated badly and exploited. Shortly thereafter her employer telephoned Ms Onu’s sister in Nigeria and informed her that should her sister sue him “she would suffer for it” adding that “if she thought things would end there she was wrong”. Following this conversation, Ms Onu brought an additional claim of victimisation against her former employer.

In the first instance the Tribunal rejected the victimisation claim on the basis that Ms Onu had not shown that the reason for the threats were that she had commenced proceedings in the Tribunal for breaches of race discrimination legislation. On appeal, the EAT held that it was wrong for the Tribunal to decide that the victimisation claim was defeated because there was no express reference to race discrimination when the threats were made.

The EAT then went on to consider whether the EA 2010 could be interpreted as covering post-employment victimisation. The EAT refused to give the strict interpretation to the meaning of the EA 2010 as had been given in Rowstock, as this would mean that the UK was in breach of EU legislation. It stated that the legislation was designed to prohibit discrimination in many contexts and that the grain of the legislation was in favour of interpreting the EA 2010 to cover post-employment victimisation.

The result of this decision is that there are now two cases at EAT level which adopt different (and conflicting) constructions of the EA 2010. As a consequence the EAT in this case granted permission to appeal to the Court of Appeal. Pending the outcome of any appeal, it is likely an amendment to legislation would be welcomed to make it clear that post-employment victimisation is covered by the provisions of the EA 2010.

For more information, please contact a member of Devonshires’ Employment team.

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