The Employment Appeal Tribunal has upheld a tribunal’s decision that post-employment victimisation is not unlawful under section 108 of the Equality Act 2010.

Mr Jessemey was dismissed by his employers and brought a claim against them for unfair dismissal and age discrimination. Shortly after filing the claim, Mr Jessemey requested a reference from his former employer, who gave him an unfavourable reference. Mr Jessemey then pursued a victimisation claim in addition to his claim for unfair dismissal and age discrimination.

Section 108(7) prohibits post-employment harassment and discrimination but does not prohibit post-employment victimisation. The section specifically excludes victimisation by stating that “conduct is not a contravention of this section in so far as it also amounts to victimisation”.

Despite the tribunal accepting that the unfavourable reference was given because Mr Jessemey had pursued proceedings, it found that the Equality Act provided no remedy for post-employment victimisation.  The EAT had no difficulty in upholding this decision and stated:

The instant situation is one in which express provision has been made for the post-relationship landscape but subject to an equally express exception in the case of victimisation. In such a situation no judicial tool is available to make available a remedy which the words used by Parliament have simply stated shall not be available.”

As the EAT acknowledged, the wording of section 108(7) produces a lacuna and does not comply with the Equal Treatment Directive. Mr Jessemey has been granted permission to appeal to the Court of Appeal. However, it is possible that the Court of Appeal will also find that their hands are tied by the wording of section 180(7).

In the meantime, employees who have suffered post-employment victimisation may consider the option of pursuing a direct claim against the government alleging a failure to adequately implement the Equal Treatment Directive under the Francovich principle.