Whether those who drafted the Equality Act 2010 intended it or not, the recent case of Rowstock Limited v Jessemey has made it clear that it is not possible to bring a claim for victimisation in relation to an event that happens after the end of the employment relationship.
Section 108(7) of the Equality Act 2010 specifically provides that a claim of victimisation cannot be brought after “the relevant relationship” has ended. This includes an employment relationship but the act as a whole covers a broad range of relationships including those that involve the provision of goods and services and education etc. It was suggested during the course of the Rowstock case that in drafting the Equality Act 2010 no-one realised that post-employment victimisation was not dealt with elsewhere within the Act and therefore the effect of Section 108(7) was to deny employees the right to bring a claim for victimisation after the employment relationship has ended.
The Rowstock case involved the most obvious circumstance in which a claim for victimisation might arise i.e. the giving of references. If a bad reference is given after the termination of the employment relationship, in order to subject that person to a detriment, because they have asserted a claim under the Equality Act 2010 or threatened to do so etc then the ‘victim’ of that poor reference has no redress under the Equality Act 2010.
Undoubtedly primary legislation will be passed to correct this anomaly but for the moment employees may well be asking for references to be agreed before they are provided by an ex-employer where there has been an allegation of the breach of the Equality Act 2010.
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