Another area of difficulty in the Equality Act is 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; however, the victimisation provisions themselves only extend to discrimination before or during employment.
In the recent Rowstock Ltd v Jessemey case the EAT accepted that, 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 EAT has now come to the opposite conclusion in Onu v Akwiwu, a migrant domestic worker case where, six months after the claimant had left her employment and lodged claims for unfair dismissal, race discrimination and failure to pay the minimum wage, a threatening telephone call was made to the claimant's sister by the respondent. The EAT confirmed that the threat was an act of victimisation, even though the race discrimination claim had not been specifically mentioned in the call, and declined to follow Rowstock v Jessemey, deciding instead that the Equality Act can be construed as covering post-termination victimisation claims.
We now have conflicting EAT decisions and although the result in this case is the right one from a policy perspective (it was clearly not intended that the Equality Act should remove the protection), the reasoning is, to say the least, somewhat convoluted. The victimisation question is going to be appealed, but given that this is the second case within a few weeks, the Government may decide to correct the problem by making an amendment to the legislation.