Post-termination Victimisation

The Court of Appeal has recently ended speculation, caused by an alleged drafting error in the Equality Act 2010, by confirming that acts of victimisation which take place after the employment relationship has ended are protected.

By way of reminder, victimisation takes place where an employee is treated unfavourably due to their employer knowing or suspecting that the employee has done or intends to do a ‘protected act, such as bringing discrimination proceedings. Prior to the Equality Act 2010 coming into force, former employees were protected from victimisation, though this was not expressly mirrored in the Equality Act 2010 where only post-termination discrimination and harassment are precluded.

Prior to Jessemey v Rowstock and as readers may remember from our Bulletins in the early part of 2013, there were conflicting cases on whether post-termination victimisation was protected by the Equality Act 2010.

In this case Mr Jessemey was dismissed by his employer, and brought claims of unfair dismissal and age discrimination. He then added a third claim, one of victimisation, after receiving an unfavourable reference from his ex-employer. He claimed that the unfavourable reference amounted to unfair treatment, and that this had only resulted after he made a ‘protected act’ in bringing an age discrimination claim against the ex-employer.

Both the first instance Tribunal and Employment Appeal Tribunal, whilst accepting that victimisation had taken place, ultimately rejected the employee’s claim. This was because that whilst the Equality Act 2010 did protect post-termination discrimination and harassment, it did not cover victimisation and so the claim failed.

On appeal to the Court of Appeal however, the claim succeeded on the basis that post-termination victimisation had to be protected under the Equality Act 2010. Whilst it was understandable why the earlier Tribunals had adopted a literal interpretation of the legislation, the Court of Appeal adopted a different approach for the following reasons:

• There was no obvious explanation for the Government intending to change the pre-Equality Act law
• By not protecting post-termination victimisation, the UK would be in breach of EU law
• There was no logical explanation for treating post-termination discrimination, harassment or victimisation differently

The case clarifies what had become a confusing area of the law, and is an important reminder to employers that their actions post-termination should still be carefully scrutinised to avoid claims from ex-employees.