Victimisation is unlawful under the Equality Act 2010. Victimisation arises where an employer subjects an employee to a detriment because the employee has done a protected act. A protected act can include, for example, making an allegation of, or bringing a claim for, discrimination under the Equality Act. In victimisation claims, usually the person will be complaining about a detriment suffered when they were still employed. However, what about where the detriment to which the employee is subjected arises after the termination of employment?
Well, section 108 of the Equality Act provides for certain types of discrimination which will be unlawful if they take place after the employment relationship has ended. However, subsection 7 provides that it is not a contravention of section 108 in so far as it also amounts to victimisation. So, on the wording of the Equality Act, victimisation which took place after the termination of employment would not be unlawful. For example, an employer providing a false or inaccurate reference to spite an employee who had made discrimination allegations.
This is exactly what happened in the case of Jessemey v Rowstock & Davis Ltd. Mr Jessemey had been dismissed by his employer at age 65. He brought an employment tribunal claim for unfair dismissal and age discrimination (remember that the default retirement age has been abolished). In response to these claims, his former employer provided a bad reference when he applied for another job. Mr Jessemey accordingly lodged another tribunal claim, this time for victimisation. Although the employment tribunal upheld his unfair dismissal and age discrimination claims, they rejected his victimisation claim on the basis that section 108(7) did not protect post-employment victimisation.
The Court of Appeal has recently handed down its decision in this case where Lord Justice Underhill concluded that post-employment victimisation was not excluded by the Equality Act. Mr Jessemey’s case was accordingly sent back to an employment tribunal to decide the victimisation claim.
Accordingly, employers should avoid subjecting employees to any detriments (such as negative references) after the termination of employment if the detriment is for victimisation reasons. The decision of the Court of Appeal makes it clear that employers can be liable for victimisation even after employment has ended.Jack Boyle Solicitor – Employment Law