Last week’s decision from the Court of Appeal confirmed that the Equality Act 2010 has not changed the law on victimisation. That means that workers complaining about victimsation after the end of their employment potentially have a remedy under the Act, in much the same way they did under the legislation which it replaced.
The uncertainty had arisen because of a rather strange subsection in the Act which appeared to rule out these claims. The Court of Appeal has said that it was obvious this did not reflect the draftsman’s intention, since post-employment victimisation was prohibited by both domestic and EU law under the pre-Equality Act regime, provided it was sufficiently closely connected with the employment. The Court could not work out what had led to this drafting mistake. However that did not prevent it from applying a bit of old fashioned judicial common sense: the simple solution was just to ignore it.
This decision has been widely expected. Those with relatively long memories will remember the tortuous litigation ending with a decision of the House of Lords in 2003 which finally made sense of the pre-Equality Act law. No one wanted a repeat of that in order to address what would otherwise have been an inexplicable anomaly. One of the most common forms of victimisation is withholding a reference from a departing employee, and it would have made nonsense of the Act to exclude such claims from its scope.