Just over a month ago we wrote about the anomaly created by the decision in Rowstock Limited v Jessemey that held that section 108(7) Equality Act 2010 which says that a claim of victimisation cannot be brought after “the relevant relationship” has ended, means that it is not possible to bring a claim for victimisation which happened after the end of the employment relationship.
Indeed, we noted how this anomaly is likely to be rectified and we did not have to wait long after all! Last week the Employment Appeal Tribunal handed down its judgment in Onu v Akwiwu disagreeing with the decision in Rowstock.
The claimant was a migrant domestic worker from Nigeria employed by Nigerian employers. Her original claim was brought because she was treated badly by her employers and the Tribunal indeed found in her favour in relation to a number of claims including that she had been unfairly dismissed and subjected to direct discrimination during the course of her employment. The Tribunal did not, however, uphold her claim that she had been indirectly discriminated against on grounds of race or had been victimised after her employment ended.
The case proceeded to the Employment Appeal Tribunal where the employer argued that post-employment victimisation claims were precluded pursuant to section 108(7) Equality Act 2010. The EAT disagreed with the finding in Rowstock and held that the proper construction of the Act required the EAT to construe the Act in the light of the Equal Treatment Directive which meant that the Equality Act permitted employees to bring claims for post-employment victimisation.
This means that there are now two conflicting EAT decisions, although the EAT granted the employer permission to appeal and we will keep you updated with the findings of the Court of Appeal.
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