Victimisation Which Takes Place Post-employment Is Covered By 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.

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, for example a claim for discrimination on the grounds of a protected characteristic (race, age etc.).

Employees are protected for acts of victimisation committed during employment. The position for post-employment victimisation has been less clear.

In our March bulletin, we updated you on the case of Rowstock v Jessemey where an employee had complained of detriment post-employment due to a bad reference given by his ex-employer which had prevented him from getting another job. It was held that there was no remedy for an employee victimised after his employment relationship had ended. 

A recent case – Onu v Akiwiwu – has completely changed the position.

Ms Onu, a Nigerian migrant domestic worker, left her employment and brought claims against her ex-employer including unfair dismissal and direct race discrimination. Six months later, Ms Onu’s former employer telephoned her sister in Nigeria stating “if [Ms Onu] thought things would end there she was wrong”, adding that “she would suffer for it”. This led to Ms Onu bringing a further claim against her ex-employer for victimisation.

After some deliberation, the Employment Appeals Tribunal held (with a rather complex interpretation of the EqA) that the EqA did cover post-employment victimisation so that individuals were protected from detriment even after they had left their employment (the opposite decision to that in Rowstock).

The EAT’s reasoning and interpretation of the law in Onu has been considered by many as “questionable” as the Tribunal literally bent over backwards to interpret the legislation in this manner. The decision is set to be appealed to the Court of Appeal later this, or early next, year. For the meantime however, the case is good law and it is important that employers ensure that treatment of individuals post-employment remains fair and reasonable. A failure to do so may result in a costly claim.

We will, of course, keep you updated on any further developments in this area in our future bulletins.