The question of whether post-employment victimisation is prohibited by the Equality Act 2010 was clarified by the Court of Appeal last week in Jessemey v Rowstock Ltd and Another. The Court confirmed that it is.
The appeal was the result of some curious drafting in the Equality Act and two conflicting decisions from the EAT, in the cases of Jessemey and Onu v Akwiwu. The issue arose because despite the fact that the discrimination legislation (and subsequent case law) which preceded the Equality Act covered post-employment victimisation, a literal interpretation of the 2010 Act would appear to exclude it. Section 108 of the Equality Act explicitly proscribes discrimination and harassment arising out of a previous relationship; however it contains no equivalent provision for victimisation. In Jessemey, The EAT concluded that the Equality Act could not be interpreted to include post-employment victimisation. The opposite conclusion was reached in Onu.
The Court of Appeal accepted (at paragraph 28) that "on a natural reading of the relevant provisions of the 2010 Act, taken on their own and without reference to any contextual material, post-termination victimisation is not proscribed". However, Lord Justice Underhill went on to state that the proper "contextual materials" (for example the decision in Rhys-Harper and the 2003 legislation) needed to be considered and when doing so it was clear that this was not the result which the draftsman intended (and at paragraph 36 he notes that it is a drafting error, albeit unintentional). In addition, he noted that if post-termination victimisation were not proscribed, the UK would be in breach of EU law.
The Court went on to consider to what extent it was possible to "correct" the draftsman's error, considering both the Ghaidan principles (giving guidance on the construction of UK legislation implementing EU law) and the domestic approach. It accepted that it was possible to imply words into the 2010 Act to prohibit post-termination victimisation.
The case is a welcome development in employment law as it clarifies a previously uncertain position. The principle of the case is most likely to come up in a practical context in the giving of references (and this was the factual background in the Jessemey case). Employers need to be careful when dealing with reference requests from employees who have raised allegations of discrimination. In this respect, a refusal to give a reference can be as bad as giving one which is tainted by prior events; both could amount to victimisation. If negotiating a settlement agreement with an employee who has raised allegations of discrimination, an employer should always address the issue of references and ensure that it acts in accordance with the agreed terms. If the employment has ended in the absence of a settlement agreement, the employer should follow its usual policy when giving a reference. Failing to do so could prove to be an expensive mistake.