Post-employment victimisation and the effects of Jessemy and Onu.
The Court of Appeal has recently held that post-employment victimisation is unlawful, overturning the previous decision in Rowstock Ltd & another v Jessemey and providing helpful clarification on the conflicting case law in this area. In so doing the Court of Appeal made it clear that the Equality Act 2010 has not changed the law in this respect, notwithstanding its wording which, on one view, seemed to suggest otherwise.
The provisions of The Equality Act 2010
There has been an ongoing concern since its introduction that the Equality Act 2010 did not properly implement EU law in terms of post-employment victimisation. The Act does not expressly state that post-employment victimisation is unlawful . However, section 108, which deals with unlawful action post employment, does expressly state that both harassment and discrimination occurring after termination of employment relationship are unlawful. If a strictly literal interpretation of section 108(7) is taken this would mean the UK Government is in breach of the European Framework Directive on equal Treatment. The cases below raised the issue of whether employees were deprived of this important protection.
The first case: Rowstock Ltd & another v Jessemey
The first case arose after a complaint of age discrimination resulted in an unfavourable reference from the claimant’s former employer. The Employment Tribunal found that post-employment victimisation was not unlawful under the Equality Act 2010 in light of the express wording of section 108(7). The EAT upheld theTribunal’s decision and confirmed that post-termination employment victimisation is not unlawful, notwithstanding that protection from discrimination is a fundamental right which the UK is required by EU legislation to implement.
Reconsideration: Onu v Akwiwu
Ms Onu was a Nigerian migrant domestic worker in the UK. She brought claims alleging direct and indirect race discrimination. In response to this, her employer telephoned Ms Onu’s sister in Nigeria and said “if she thought things would end there, she was wrong” and that “she would suffer for it”. Ms Onu then brought a claim for victimisation.
The Tribunal rejected all of her claims, taking the same approach as in Jessemey.
On appeal, however, the EAT held that the decision in Jessemey had been wrong, that the wording of the Act was ambiguous and that it could and should be interpreted to give a remedy for post-employment victimisation claims.
The conflicting decisions in Jessemey and Onu left employment in an unsatisfactory position and in a state of confusion.
Clarification from the Court of Appeal
Both of the above cases were appealed and in February this year the Court of Appeal clarified the law on post-employment victimisation. The Court of Appeal stated that, although the Act does not expressly cover post- employment victimisation , it must be read in the context from which it is produced. This meant interpreting the Equality Act in accordance with EU Law. The Court of Appeal also acknowledged that, even in those areas not covered by existing EU law, Parliament had not intended to change this aspect of the law when it enacted the Equality Act. The Court of Appeal concluded that protection against post-employment victimisation would be consistent with the fundamental principles of the Act and recognised that the apparent exclusion of a remedy under the Act for those who have been victimised post-employment was unintentional. The decision therefore confirmed that post-employment victimisation is prohibited by the Equality Act 2010.
To avoid victimisation claims employers are advised to treat current and former employees consistently. With this in mind, some employers have adopted the policy in relation to references of producing only standard references in every case, confirming job titles and dates of employment to avoid subjective and perhaps retaliatory responses in providing references to those who may have complained of some form of discrimination.
It must also be borne in mind that victimisation protection extends to include protection against detrimental treatment, even where the protected act / complaint of discrimination , it transpires, was not unlawful; just because an individual may not in fact have been discriminated against, that does not mean a subsequent act of victimisation cannot have taken place.
To this end it is helpful to have a reference policy and communicate this to staff to make it clear that any negative treatment post employment, such as that in the above cases, should be avoided.
Onu v Akwiwu; Jessemey v Rowstock Ltd, 26 February 2014