The EAT has held, in the case of Onu v Akwiwu and another that the Equality Act 2010 does protect individuals against post-employment victimisation. This is a change from its previous decision in Rowstock Ltd and another v Jessemey and also the decision reported in “Can giving a bad reference lead to a discrimination claim?”
Under the Equality Act 2010, victimisation occurs where a person (A) subjects another person (B) to a detriment because B has done, or A believes B has done or may do, a protected act, which includes bringing a complaint of discrimination under the Equality Act 2010.
In pre-Equality Act 2010 discrimination legislation provided that former employees were expressly protected from victimisation by their former employers where the acts complained of arose out of the employment relationship. While the Equality Act 2010 expressly protects former employees from post-employment discrimination and harassment, it does not protect against post-employment victimisation. However, EU law requires post-employment victimisation to be outlawed.
In determining whether post-employment victimisation is covered by the Equality Act 2010, the EAT stated that it would need to approach the question in two stages: first, it would assess the pure meaning of the Equality Act 2010 and, secondly, it that interpretation was inconsistent with EU law then it would assess whether it is possible to interpret the Equality Act 2010 in light of EU law.
In the event, the EAT determined that the Equality Act 2010 could be interpreted to cover post-employment victimisation but noted that even if it had not reached this conclusion then “sufficient ambiguity about the proper meaning of the statute” to enable it to interpret the Equality Act 2010 as providing the requisite protection, in line with EU law.
This point will hopefully be completely resolved when it is argued before the Court of Appeal in the case of Rowstock Ltd and another v Jessemey, expected between 1 July 2013 to 2 January 2014.