The Court of Appeal has confirmed that victimisation which occurs after the end of employment is unlawful under the Equality Act. The Court held that it is clearly a drafting error that the Act does not appear to prohibit post-employment victimisation and that words can be read into the Act to correct the error.
Victimisation occurs where an employer subjects an employee to a detriment because either:
- the employee has done a protected act; or
- the employer believes that the employee has done, or may do, a protected act.
There are various "protected acts", including bringing proceedings under the Equality Act 2010 ("Equality Act").
The pre-Equality Act discrimination legislation expressly protected former employees against victimisation at the hands of their former employers.
However, the drafting of the legislation was changed when the Equality Act was introduced. Not only are there no equivalent provisions, but the Act appears to specifically exclude post-employment victimisation. Whilst section 108 extends protection from discrimination and harassment to former employees, section 108(7) states: "conduct is not in contravention of this section in so far as it amounts to victimisation".
This issue was considered by two Employment Appeal Tribunals, each reaching a different decision. In Jessemey v Rowstock Ltd, the EAT held that post-employment victimisation is not covered under the Equality Act. However, the EAT reached a different decision in the case of Onu v Akwiwu. Both decisions were appealed and the cases were conjoined.
The Court of Appeal held that post-employment victimisation is prohibited under the Equality Act. It considered that the failure to proscribe post-employment victimisation under the Equality Act is clearly a drafting error for the following reasons:
- At the time the Equality Act was drafted, post-employment victimisation was unlawful under established case law and the pre-Equality Act discrimination legislation, following decisions at the European Court and the House of Lords;
- There was nothing to indicate that Parliament had intended to remove this protection in the Equality Act;
- The explanatory notes to the Equality Act clearly contemplate that post-employment victimisation is to be prohibited;
- If post-employment victimisation was not unlawful, the UK would be in breach of its obligations as a matter of EU law; and
- None of the parties had suggested a rational basis for treating post-employment victimisation differently from post-employment discrimination and harassment.
Having considered that the failure to prohibit post-employment victimisation is a drafting error, the Court considered whether and how it could correct the error. It decided that was possible to imply words into the Equality Act to achieve this, taking the more flexible approach to interpretation which applies where necessary to ensure compliance with European law. It suggested the simplest approach would be to insert at the end of section 108(1) the sentence "In this sub-section discrimination includes victimisation". Alternatively a whole new section could be implied.
The Court also held that even without the need to interpret the legislation consistently with European law, the most natural interpretation of the Equality Act is that it does protect against post-employment victimisation.
It has always been clear that the failure to prohibit post-employment victimisation under the Equality Act is a drafting error. However, given the previously conflicting decisions at the EAT as to how far it could go, in using its powers of interpretation, to correct that error, the Court of Appeal's clarification on this point is helpful.