A claim for victimisation can be brought where an employee has been subjected to a detriment as a result of bringing a discrimination complaint.
Prior to the Equality Act 2010, discrimination legislation gave former employees the right to bring claims for victimisation that occurred after their employment ended. However, although the Equality Act makes post-employment discrimination and harassment unlawful, it specifically excludes post-employment acts of victimisation (section 108 (7)). In the recent case of Taiwo v Olaigbe, the employment tribunal judge held that this was a drafting error, and that the Act should be interpreted to protect former as well as current employees.
Ms Taiwo had worked as a live-in nanny/housekeeper under a migrant worker visa until she left her employment, complaining of racial abuse. During the course of subsequent tribunal proceedings, her ex-employers sent the trial bundle to the United Kingdom Border Agency, asking that they re-examine her immigration status. Ms Taiwo then brought a claim for post-employment victimisation. The employers argued that such claims are excluded by the Equality Act 2010.
The employment judge referred to the EHRC Code of Practice on Employment and correspondence from the Government Equalities Act office each of which seem to confirm that protection from post-employment victimisation is maintained under the Equality Act. He concluded that the current exclusion is a drafting error and that words should be read into the Act in order to clarify that victimisation claims relating to former employment are covered.
This decision conflicts with a previous tribunal decision in Jessemey v Rowstock Ltd, in which it was held that Mr Jessemey could not proceed with a victimisation claim relating to an unfavourable reference given by his former employer. However, Taiwo v Olaigbe is more consistent with the intention behind the legislation and previous case law, and is a common-sense decision. An amendment to the Equality Act 2010 would nevertheless be welcome in order to clarify the situation