In March 2013, we reported that post-employment victimisation was not prohibited by the Equality Act 2010, following the decision by the Employment Appeal Tribunal (“EAT”) in Rowstock Ltd & David v Jessemey.
The issue of whether the Equality Act covers post-employment victimisation has recently been reconsidered by the EAT. In the case of Onu v Akwiku , the EAT refused to give the strict interpretation to the meaning of the Equality Act as had been given in Rowstock and held that the natural interpretation of Section 108 of the Equality Act 2010 means that victimisation post-employment is prohibited and such claims were permissible.
The conflicting decisions derive from a drafting error in the provisions of the Equality Act. When the Equality Act was enacted, for some reason the relevant section made it very clear that post-employment victimisation was not unlawful. The government did not intend to exclude such protection; however the EAT has reached conflicting conclusions as to the interpretation of the Equality Act.
In Onu v Akwiku, the EAT stated that the legislation was designed to prohibit discrimination in many contexts and there was never any intention to exclude post-employment victimisation. In any event, the EAT believed that the Equal Treatment Directive, under EU Law, would support this interpretation of the Equality Act and that the provisions of the Act should be construed accordingly.
As we now have two conflicting cases, both at EAT level, we await the outcome of the appeal in the Rowstock case to the Court of Appeal for this point to be resolved.
In the meantime, employers should be aware that Tribunals may follow the most recent decision and hold that victimisation post-employment is actionable. So employers should still exercise restraint in dealing with departed employees in these circumstances, especially where the giving of references is concerned.