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Oops! Post-employment victimisation is NOT PROTECTED by the Equality Act

On 05 March 2013 the Employment Appeal Tribunal in Jessemey v Rowstock Ltd considered an appeal by an employee who lost his case of “victimisation” against his employer. His claim was that he had been “victimised” within the meaning of the Equality Act 2010 when his employer gave him a bad reference because he raised a discrimination claim against them. In fact, the Employment Tribunal agreed the employer had provided a bad reference purely because the employee had raised a discrimination claim. Why then did Mr Jessemey lose his case? Mr Jessemey lost his case because on examination of the relevant provisions of the Equality Act 2010, the Tribunal concluded the legislation simply did not offer protection for post-employment victimisation claims.
On appeal to the Employment Appeal Tribunal, the Equality and Human Rights Commission intervened arguing that this apparent lack of protection was the result of a “legislative blunder”. It argued that if the tribunal’s decision was upheld, UK law would not be compliant with EU law, and the government would have to amend the Act. The Employment Appeal Tribunal was invited to interpret the Equality Act 2010 so as to provide protection and avoid amendments to the law. However, whilst the Employment Appeal Tribunal conceded it was unlikely Parliament intended not to offer protection in the circumstances, the wording of the Equality Act 2010 was such that any other interpretation “would be an interpretation flying directly in the face of what Parliament has actually enacted… whether for ‘good’ reason or ‘bad’ reason or through error or inadvertence”. In the circumstances, Mr Jessemey lost his appeal but has been granted permission to appeal to the Court of Appeal.
Cases involving bad references following discrimination claims are probably the most obvious examples of post-employment victimisation. Under the old legislative regime there is no doubt that protection was in place. With no obvious or logical reason for a change to the law, there is little doubt this was a mistake. If the Employment Appeal Tribunal is correct, UK law is not compliant with EU law and the government will have no option but to amend the legislation or face claims itself for failing to implement EU law.
For further information or to discuss any Employment matters with our team please contact our Employment team.

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