Rowstock Limited v Jessemey

The Court of Appeal has recently clarified the position in relation to an employer’s liability for victimisation of an employee after he/she has left his/her employment. This most usually occurs when a poor or no reference is given for employees who have brought discrimination claims.

For many years it was well understood that employees were entitled to bring victimisation claims in such circumstances, but the Equality Act 2010 (specifically Section 108(1) and 108(7)) brought about considerable confusion. The language is impenetrable and many thought, just wrong. Fortunately, the Court of Appeal has agreed.

The employee in Rowstock Limited v Jessemey was dismissed at the age of 65. He brought claims for unfair dismissal and age discrimination, and shortly after having been given an unfavourable reference, victimisation. The Employment Tribunal had accepted that the unfavourable reference was specifically because Mr Jessemey had brought proceedings, but they said the action could not succeed because of the drafting of Section 108. The EAT agreed, but the Court of Appeal has now reversed that decision and found a way round the problem. In their view the Equality Act was not supposed to change the law and if it did (such that post-employment victimisation was not prescribed), that would put the UK in breach of our obligations under EU law. The Court of Appeal therefore chose to “reinterpret” the statute, so as to accord with the “grain” of the legislation. Post termination victimisation was prescribed and this, they believed, was in any event, what the draftsman had intended.

In practical terms, this is a further warning to employers to be wary about how they draft references – not only those given in writing, but verbal references as well. In most cases offering a “standard” reference is the safest course. Offering particularly favourable references in some cases, but not in others, is also a potential problem because it can give rise to allegations of “discriminatory” treatment.