In Jessemey v Rowstock Ltd and another [2014] EWCA Civ 185, the Court of Appeal has overturned the EAT's decision and held that post-employment victimisation is prohibited by the Equality Act (the Act), despite the legislation clearly stating that it is not.  The Court held that this was an obvious drafting error and corrected it.  This meant that Mr Jessemey was able to bring a victimisation claim where his employer had provided an unfavourable reference as a result of him issuing a discrimination claim against it.

Facts

Mr Jessemey was dismissed by Rowstock Ltd (the Company) on the grounds of retirement.  He brought claims against the Company for age discrimination and unfair dismissal.  He later discovered that the Company had provided a very poor reference for him to an employment agency and brought a victimisation claim as well, on the basis that he had issued a claim for age discrimination.

Employment tribunal decision

The tribunal found that Mr Jessemey's dismissal constituted automatic unfair dismissal and age discrimination.  It accepted that the Company gave the bad reference because Mr Jessemey had brought discrimination proceedings against it.  This was an act of victimisation as defined by the Act.  However, his claim could not succeed because section 108 of the Act prohibits post-employment discrimination and harassment but expressly does not cover victimisation.  Mr Jessemey appealed.

EAT decision

The EAT held that the effect of section 108 was to fail to provide protection against post-employment victimisation.  To read words into the Act in order to remedy this would amount to deciding that the Act meant the exact reverse of what it said.  Mr Jessemey appealed.  His case was heard with the appeal in Onu v Akwiwu UKEAT/0022/12, where the EAT had held that post-employment victimisation was covered by the Act.  A separate judgment will be given in this case in due course, as it also raised other issues.

Court of Appeal decision

The Court of Appeal upheld the appeal and held that post-employment victimisation was prohibited by the Act.  Mr Jessemey's claim for victimisation therefore succeeded and his case was remitted to the tribunal to decide compensation.

The Court of Appeal found that the wording of section 108 clearly did not cover post-employment victimisation.  However, its literal meaning must have been an unintentional drafting error because, at the time it was drafted, post-employment victimisation was unlawful and there was no rational basis for withdrawing statutory protection against discrimination when employment terminated.  There was nothing to suggest the Government intended to change the law and remove protection when it drafted the Act.  In addition, if post-employment victimisation was not prohibited, the UK would be in breach of its obligations under EU law.

Comment

This decision is helpful, as the law had previously been uncertain on this point and we now have clarity.  Employers should note that post-employment victimisation is definitely prohibited by the Act and they should be very careful about how they treat employees or former employees who have brought discrimination proceedings against them, particularly when they give references.