In May 2013 we highlighted the conflicting decisions in the cases of Rowstock Limited v Jessemey and Onu v Akwiwu in relation to post-employment victimisation.

In Rowstock, it was held that it was not possible for an employee to bring a victimisation claim under the Equality Act 2010 after the employment relationship had ended; in Onu, it was held that post employment victimisation was covered by the Equality Act 2010. The Court of Appeal has looked at both cases and has now determined that… (drum roll) post-termination victimisation is covered by the Equality Act.

The Rowstock case concerned a poor reference from the company for a former employee who had previously brought unfair dismissal and age discrimination claims against it. What the Court of Appeal has now established is that ex-employees in this situation will still have a remedy under the Equality Act to bring a victimisation claim, even though the act (the giving of the reference) happened after the relevant (employment) relationship. The Court held that even though it was clear on a natural reading of the relevant sections of the Equality Act that post-termination victimisation is prohibited, it is equally clear that this was not the intention of the draftsmen for a number of reasons. At the time the Equality Act was drafted, post-termination victimisation was prohibited and there was no indication that the Government intended to change that.

Further, if post-termination victimisation was lawful, the UK would be in breach of its obligations under the EU Equal Treatment Directive which prohibits victimisation (and nobody wants to be in breach of EU law).

Employers should therefore be wary of their actions even when employees have left the business to avoid potential litigation with ex-employees.

If you would like any further information on this topic please contact one of the Edwin Coe Employment team.

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