Equality Act Does Not Provide Remedy For Post-Termination Victimisation

Rowstock v Jessemey

The EAT were tasked with deciding whether victimisation which takes place after the employment relationship has ended, is unlawful under the Equality Act 2010.

The Equality Act defines victimisation as taking place where one person subjects another (the victim) to a detriment because the victim has done or may do a protected act, or where the victimiser believes that the victim has done or may do a protected act. A protected act includes bringing a claim under the Equality Act.

Prior to the Equality Act coming into force, former employees were protected from victimisation at the hands of their former employers. Under the Equality Act, only discrimination and harassment that take place after the employment relationship has ended are protected. Victimisation is specifically excluded under the Act.

Mr Jessemey was dismissed by his employer and brought claims of unfair dismissal and age discrimination. He also received an unfavourable reference from the ex-employer, and brought a claim of victimisation in relation to this.

It was held that the unfavourable reference was only given as Mr Jessemey had brought a claim of age discrimination. As such, this in itself amounted to victimisation.

However, the claim did not succeed as it was held that the Equality Act does not provide protection against victimisation which takes place after the employment relationship has ended.

Mr Jessemey argued that Parliament could not have meant for victimisation which takes place after the employment relationship has ended, not to be protected like harassment and discrimination were. However, the EAT held that words could not be read or implied into the Equality Act, to give it a different meaning to the one clearly laid down in the statute.

As a result of this decision, many believe that the Equality Act contains a drafting error, and as a result, that UK law is not complaint with EU law.

Unless the Equality Act is amended in this respect, the only redress that Claimants such as Mr Jessemey will have, are claims against the UK Government for not following EU law. The costs and complexities of bringing claims of this nature however, will often prove disproportionate.