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Post-employment victimisation is not protected by the Equality Act 2010- 14/02/2012
In the recent case of Jessemey v Rowstock Ltd and another ET/2700838/11 and ET/2701156/11 the tribunal held that the victimisation suffered by an employee, after his employment had terminated, was not unlawful under the Equality Act 2010.
The Claimant in the case, Mr Jessemey, was dismissed just before his 66th birthday by the Respondent, his employer Rowstock Ltd. The Claimant brought claims for age discrimination and unfair dismissal against the Respondent and was successful.
Subsequently the Claimant began to look for another job. The Respondent was asked to provide a reference to a recruitment agency in relation to the Claimant’s application for work. It came to the Claimant’s attention that the reference provided was unfavourable. He was of the opinion that this was an act of victimisation because he had brought claims against the Respondent in relation to his dismissal.
The tribunal found that the reference provided was an act of victimisation. It was clear that the reason for the bad reference was because the Claimant had pursued employment tribunal proceedings. However, the tribunal could not consider any remedy for victimisation due to the drafting of the Equality Act 2010. Section 108 prohibits post-employment discrimination and harassment, but does not prohibit post-employment victimisation. Indeed, Section 108 (7) provides expressly that victimisation is not covered by the Equality Act 2010.
The Claimant did not appear to rely upon Rhys-Harper v Relaxion Group Plc [2003] UKHL 33, in which it was held that post-termination acts of discrimination (which would include victimisation) were covered by the old discrimination legislation in certain circumstances, even though not expressly protected under that legislation. Perhaps the outcome may have been different if this case had been taken into account?
For further information, please contact Daff Richardson, Eugene Wojciechowski, Tom Walker or Sarah Johnson.