The recent judgment of the Employment Tribunal in Taiwo v Olaigbe and others has provided clarity that a claim for post-employment victimisation can be brought under the Equality Act 2010 ("EA 2010"). By taking a purposive approach to the legislation, the Tribunal held that the EA 2010 victimisation provisions cover both current and former employees, thus allowing the legislation to give effect to EU law and providing consistency with pre-EA 2010 case law.
T was employed as a live-in nanny/housekeeper working under a migrant worker visa. She left that employment due to alleged ill treatment and abuse by her employers and brought a claim for race discrimination. During the hearing, the employers sent the tribunal papers to the UK Border Agency requesting that they revisit T’s immigration status. T then brought a second claim of race discrimination, harassment and victimisation, relating to these actions.
The employers argued that the victimisation complaint should be struck out as the EA 2010 did not cover acts of post-employment victimisation, and this issue had to be determined by the Tribunal at a Pre-Hearing Review. Ultimately, T’s victimisation claim was allowed to proceed. The Tribunal agreed that, on the face of it, it appeared as though a claimant could not bring a claim for post-employment victimisation under the EA 2010 because such a claim is expressly excluded from section 108(7), which deals with post-employment relationships. However, the Tribunal considered the fact that ex-employees were protected against victimisation under the pre-EA 2010 legislation, and, in fact, the old legislation had to be amended to make such victimisation unlawful in order to bring UK law into line with European law. Further, as the EA 2010 was not intended to amend discrimination law generally, it followed that the EA 2010 should maintain these specific protections unless there had been some governmental assertion to the contrary, which there had not been. This view was supported by the EHRC Code of Practice, and a statement given by the Government Equality Office in correspondence with the Discrimination Law Association. The Tribunal therefore concluded that the drafting of section 108(7) was an error and it was possible to give the legislation a purposive interpretation to maintain these protections.
Impact for employers:
- Although this is only a Tribunal level decision, it is a common sense approach which confirms what most employment lawyers and legal commentators have presumed to be the case in any event and is likely to be accepted as the correct position.
- The majority of post-employment victimisation claims tend to relate to references issued by employers, and there did not appear to be any reason why such protection should be removed. The Tribunal’s conclusion that the wording of section 108(7) was a drafting error is therefore most likely correct.