Just when the EAT ruled that post-employment victimisation was not unlawful under section 108 of the Equality Act 2010 (Rowstock Ltd and another v Jessemey), a differently constituted EAT panel, in Onu v Akwiwu and another, has now ruled that post-employment victimisation is protected under the Equality Act 2010.

Ms Onu, a Nigerian, was employed as a domestic servant by Nigerian employers in the UK on a migrant domestic worker visa. She left her employment alleging she was exploited and badly treated by her employers and brought tribunal claims against them including race discrimination, unfair dismissal and failure to pay the national minimum wage. Shortly after, her employers contacted her sister in Nigeria to say that Ms Onu had sued them and “she would suffer for it”. As a result, Ms Onu brought an additional claim for victimisation.

The Employment Tribunal rejected Ms Onu’s victimisation claim as the employers did not make specific reference to the discrimination claim during their telephone conversation with Ms Onu’s sister and Ms Onu had failed to show that the threats from her employers were because she had commenced proceedings for race discrimination.

On appeal, the EAT again considered the provisions of the Equality Act 2010 and whether it protected former employees from post-employment victimisation. The EAT stated that this required a two-stage approach. The first stage involved the true construction of the domestic statute and in a rather complex and convoluted manner the EAT came to the conclusion that the Equality Act 2010 does cover post-employment victimisation. One reason given was that, in the EAT’s view, the draftsman must be taken to have been aware of the House of Lords decision in Rhys-Harper v Relaxion Group and that victimisation under previous discrimination legislation could give rise to a claim if it occurred post-termination. Further, section 108(7) of the Equality Act 2010 was not considered expressly to exclude a claim for victimisation under other provisions of the Act, which were deemed to apply whether the employment was continuing or had ceased. Finally, if the construction of the Act did not accord with EU law, the second stage would be for the tribunal to interpret the statute in a manner consistent with European obligations.

The EAT acknowledged that they should follow the decision in Rowstock Ltd and another v Jessemey, unless persuaded it was wrong. The EAT in Onu v Akwiwu were persuaded it was wrong. However, now that there are two conflicting decisions from the EAT on post-employment victimisation, the EAT have granted permission to appeal so that the Court of Appeal can give a definitive answer. Mr Jessemey has already appealed and his case is due to be heard by the Court of Appeal between July 2013 and January 2014. In any event, employers should exercise caution and avoid treating employees or ex-employees unfavourably on the basis they have brought claims under the Equality Act, including when giving job references.