It was perhaps a coincidence that the EAT President chose international labour day to announce a decision that restores protection for workers victimised after their employment has ended. In doing so he disagrees with a judgment from another division of the EAT released two months ago, which reached the opposite conclusion. With the weight of the President behind it, the former decision is the more likely to be followed, but we will need to wait until both cases reach the Court of Appeal before the debate is officially over.
Before the Equality Act 2010 came into effect it had become clear (though not without a great deal of litigation) that a worker could seek redress against a former employer if victimised after the employment had been ended – for example by withholding a reference because the worker had previously brought discrimination proceedings. The aim of the Equality Act was to codify these legal principles, but unfortunately it did not make that good a job of it.
The Act has a section which deals explicitly with post-employment discrimination. However, for reasons which are not entirely clear, it includes wording that excludes victimisation from the scope of that section. The better view seems to be that this is without prejudice to the earlier provisions of the Act defining the various types of discrimination. These appear wide enough to cover victimisation after the employment relationship has ended, even though this is not explicitly stated.
Certainly it seems logical for policy reasons that workers have seamless protection from victimisation. As the recent tribunal decision involving a worker at Commerzbank illustrates, victimisation can still happen at large, well-resourced organisations, and is not necessarily a response to events that happen within the confines of a particular employment relationship.