The Equality Act 2010 makes it unlawful to subject an employee to detriment because they have raised (or are threatening to raise) a complaint about discrimination – so-called “victimisation.”

Over the last year or so there have been conflicting judgments from the Employment Appeal Tribunal on the issue of ex-employees and whether they are protected from victimisation.

Today the Court of Appeal handed down its judgment in Jessemey –v- Rowstock Limited [2014] EWCA Civ 185 and confirmed that ex-employees are protected from victimisation by their former employer. The judgment is not, at the time of writing, available online but please contact us if you would like a copy.

Why the confusion? And why does it matter?

Following the House of Lords case of Rhys-Harper v Relaxion Group plc in 2003 and amendments to the discrimination legislation made that same year, ex-employees were protected against victimisation by their former employer. For example, if an ex-employee brought a discrimination claim in the Employment Tribunals against their former employer and, because of that, the former employer gave the ex-employee a poor reference, this would have been unlawful victimisation. The ex-employee would be entitled to compensation for financial loss flowing from the poor reference and an amount in respect of injury to feelings.

In 2010 all of the previous discrimination legislation was consolidated into the new Equality Act. The 2010 Act clearly prohibits victimisation of current employees. It also specifically states, at section 108, that ex-employees are protected from discrimination and harassment, where the acts are closely connected to the relationship that used to exist between the parties, and where the conduct would have been unlawful if the relationship was on-going.

However, this wording does not specifically post-employment cover victimisation, just harassment and discrimination. What is more, section 108 goes on to say (at subsection (7)) that: “conduct is not a contravention of this section in so far as it also amounts to victimisation[…]

Do these new provisions mean that post-employment victimisation is no longer unlawful?

In 2013, the EAT considered the question on two separate occasions, and came up with two different answers (as discussed in a previous blog).

In March 2013, in the case of Rowstock Ltd & Davis v Jessemey, the EAT found that victimisation post-employment was not prohibited by the Equality Act, thanks to the express wording in section 108. However, in the case of Onu v Akwiku in May 2013, the EAT concluded that such claims should be allowed.

Until today’s judgment the legal position was in a state of confusion.

The Court of Appeal’s decision

Today’s judgment provides welcome clarification but, because the Court of Appeal has followed the EAT in Onu rather than Jessemey, the position is more onerous for employers.

Mr Jessemey was employed by Rowstock Limited and was dismissed in January 2011 because he had reached the age of 65. When he brought proceedings for unfair dismissal and age discrimination his manager Mr Davis (who was also a respondent to the claim) gave him a poor reference. The Employment Tribunal found that Mr Davis did this because Mr Jessemey was pursuing Employment Tribunal proceedings.

For those who are interested, the Court of Appeal’s judgment contains a short but interesting history of the discrimination legislation and, in particular, the victimisation provisions.

Essentially the Court found that, because ex-employees were protected from victimisation at the time the Equality Act 2010 was drafted, Parliament cannot possibly have intended to remove that protection in the 2010 Act. Further, because European Union Law requires that ex-employees are protected from victimisation, the UK courts must interpret the 2010 Act to give effect to that protection, and such an interpretation was possible here.

The Court left open the question of what exactly sub-section 108(7) of the 2010 Act means and said:

“In the unlikely event that anyone seeks to rely on it in future, some other court can cudgel its brains about what real effect, if any, it has…”

Practical points for employers

Issues relating to post-employment victimisation most commonly arise in the context of references. Employers should develop and strictly enforce policies for giving references. To avoid claims of victimisation it is important that references do not refer to any claims or grievances relating to discrimination.

As well as written references these principles also to apply to verbal approaches for references which may be made to individual managers rather than HR departments.

Although sometimes seen as unhelpful by employees, the employer’s position is best protected by providing a ‘standard’ reference confirming only job title and dates of employment.

It is important to remember that victimisation can occur many years after the employment relationship has ended. In Bullimore –v- Pothecary Witham Weld Solicitors an employer victimised an ex-employee who had brought a sex discrimination claim by giving a poor reference some four years later and was liable for the losses suffered by the employee when a new job offer was subsequently withdrawn.

Note: Although in this blog we use the term “employee,” the protection of the Equality Act 2010 extends beyond this to any person working under a contract of apprenticeship or a contract personally to do work.