Employment Appeal Tribunal ("EAT") says post-employment victimisation is not unlawful

April 11, 2013

In a judgment handed down on 5 March 2013, the EAT held in the case of Rowstock Ltd v Jessemey that the Equality Act 2010 (“EqA”) does not provide protection against post-employment victimisation. The judgment surprised many practitioners who had expected the Tribunals to interpret the law differently. Despite this judgment, some employers will still be liable for post-employment victimisation. Here we examine the implications of the case and suggest where the law may go from here.

The law
Section 108 of the EqA is entitled “Relationships that have ended”. As the name implies, this section seeks to extend certain provisions under the EqA, such as protection against unlawful discrimination and harassment, to dealings between parties whose employment or other relationships have ceased. However, subsection (7) states, “But conduct is not a contravention of this section in so far as it also amounts to victimisation of B by A.” This appears to expressly state that victimisation in the post-relationship context is not rendered unlawful under the EqA.

The facts
Mr Jessemey was employed by Rowstock Limited (“Rowstock”). He was dismissed shortly before his 66th birthday, having been told that the company did not want to employ men over the age of 65. He brought a claim in the Employment Tribunal for unfair dismissal and age discrimination.

Mr Jessemey subsequently discovered that Rowstock had supplied a very poor reference about him to a recruiter. As a result, he added a claim for victimisation to the proceedings. He alleged that the reason Rowstock had provided such a reference was because he had brought discrimination claims against it.

The Tribunal
The Tribunal held that:

  • Mr Jessemey’s dismissal was manifestly and automatically unfair, and it amounted to age discrimination, as he was dismissed by reason of his age.
  • The reference given to the recruiter, the contents of which ensured that no employer would hire him, amounted to an act of victimisation, as this was given because of the discrimination claim. However, by reason of section 108(7) of the EqA, post-employment acts of victimisation are not unlawful, and the Tribunal therefore did not have the jurisdiction to award any remedy.

Mr Jessemey cross-appealed the Tribunals’ decision in respect of this last point and the rejection of his victimisation claim. Because his appeal raised a matter of public importance, the Equality and Human Rights Commission (EHRC) was granted permission to submit arguments in his support. They relied on another case for post-employment victimisation which had succeeded. The judge in this successful case had concluded that section 108(7) was drafted in error and applied a corrective interpretation of it.

Furthermore, the EHRC submitted that the literal words of section 108(7) can only be seen as a “legislative blunder”, as it was clear that the EqA was not intended to remove or reduce the scope of the preceding legislation. If the EAT found otherwise, then the UK would inevitably be found not to comply with the requirements of the EU’s Equal Treatment Directive, the Equal Treatment Framework Directive and the Race Directive, and the UK Government would need to change the EqA accordingly.  

The Employment Appeal Tribunal (EAT)
In its judgment, the EAT said that, “the literal words of section 108(7)…produce a lacuna in the statutory scheme of protection from discrimination, harassment and victimisation which the UK is required by EU legislation to enact.” Although it recognised that it was unlikely that post-employment victimisation had been intentionally excluded under this section, it said the real question is whether the EAT had the power “to plug the gap or eliminate the lacuna”. The EAT concluded that its judicial role does not extend as far as amending primary statutes.

The EAT therefore upheld the Tribunal’s judgment in rejecting Mr Jessemey’s post-employment victimisation claim and dismissed his appeal. However, it granted Mr Jessemey permission to appeal on this point to the Court of Appeal. We are awaiting the outcome of any such appeal.

What this means for you
The EAT’s decision highlights and preserves the “lacuna” in the EqA, which in effect limits an employer’s exposure to victimisation claims brought by former employees after employment has ended.

Should this case be pursued further, it would be interesting to see whether the Court of Appeal would be inclined to interpret section 108 under the EqA differently. If not, it may well be that UK law in this area falls foul of EU law, and this would require rectification by amending the EqA so that it is in compliance.

In the meantime, employees who are subjected to post-employment victimisation will not necessarily find themselves without redress. Public sector employers, including local authorities, health authorities and the police, are ‘emanations of the state’, meaning they are bodies which have been made responsible for providing a public service under the control of the state and as such, they have special powers beyond those which stem from the normal rules. The EU law doctrine of direct effect may allow employees to claim rights affecting their employment against the state or ‘emanations of the state’. This means that employees in these services may be able to rely directly on the relevant EU directives to enforce their rights as set out under them.


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