Ever since the Equality Act came in over two years ago, there has been uncertainty as to whether it covers post-employment victimisation. This is because section 108, which clearly prohibits post-employment discrimination and harassment, specifically excludes victimisation from its scope; the victimisation provisions only extend to discrimination before or during employment.
The claimant in Rowstock Ltd v Jessemey had brought age discrimination and unfair dismissal claims against his employer following his dismissal. Shortly afterwards, his employer provided an unfavourable reference to an employment agency. He brought a victimisation claim against his former employer but although the Tribunal accepted that the reason why the unfavourable reference had been given was because he had brought proceedings, the claim failed because section 108 does not extend to acts of post-employment victimisation.
At the appeal, in which the Equality and Human Rights Commission intervened on the claimant's behalf, the EAT upheld the Tribunal's decision. The EAT accepted that, based on the House of Lords' decision in Rhys-Harper v Relaxion Group PLC, pre-Equality Act the claimant would have been able to bring a victimisation claim. They also agreed that there was no intention to remove protection against post-employment victimisation in the Act. Nevertheless, it was impossible to interpret section 108 in a way that would be consistent with maintaining that protection, given that it has been expressly excluded.
The claimant has been given permission to appeal the point, although the obvious way to correct the problem is for an amendment to the legislation to be made.