Yes or no – can someone be victimised post-employment?

It seems a fairly simple question – does the law provide protection for victimisation post-employment or not? Unfortunately, at the moment the answer is far from straightforward…

Under the Equality Act 2010, victimisation occurs where a person (A) subjects another person (B) to a detriment because either:

• B has done a protected act (including bringing proceedings under the Equality Act 2010), or
• A believes that B has done, or may do, a protected act.

The Equality Act 2010 aimed to bring together the previous discrimination laws in one place. However, although it specifically protects former employees from post-employment discrimination and harassment, unlike the previous laws it does not expressly protect against post-employment victimisation. In fact, the Act says that “conduct is not a contravention … in so far as it also amounts to victimisation of B by A.” An example of post-employment victimisation that can occur is a former employer providing an unfavourable reference because the employee brought proceedings against that former employer. This omission has seemed to not be in the spirit of the Act and has been viewed by many as an error.

However, In Rowstock Ltd and another v Jessemey (2012), the Employment Appeal Tribunal concluded that the Act does not provide protection against post-employment victimisation as such protection is expressly excluded. The EAT acknowledged that it would be tempting to read words into the legislation so as to grant the relevant protection but that this would amount to deciding that the Act “means the exact reverse of what it says.” It followed that Mr Jessemey could not succeed in his victimisation claim based on an unfavourable reference provided by his former employer. 

Two months later, we get an exact opposite decision from the EAT in Onu v Akwiwu and another (2012). In this case, Ms Onu had brought claims against her former employer for unfair dismissal, race discrimination and failure to pay National Minimum Wage. She then received some alleged threats from her former employer and so she also commenced a victimisation claim. The Employment Tribunal held that Ms Onu’s claims succeeded apart from the victimisation claim. On appeal, the Employment Appeal Tribunal agreed with the Employment Tribunal that on the facts the victimisation claim failed, but they considered the point about whether there was any protection against post-employment victimisation in the Equality Act 2010 at all. In a rather convoluted manner, they concluded that the Act should be interpreted as applying such protection.

As there are now two conflicting authorities at the same level, we await a decision from a higher court. This should not be long as Mr Jessemey’s case is set to be heard in the Court of Appeal in late 2013/early 2014. We will keep you updated!

If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or [email protected]).

Please note that this update is not intended to be exhaustive or be a substitute for legal advice. The application of the law in this area will often depend upon the specific facts and you are advised to seek specific advice on any given scenario.