Equality Act 2010 Covers Post Employment Victimisation

The Equality Act 2010, which came into force on 1 October 2010, combined and re-stated the previous legislation governing discrimination.

One form of discrimination covered by both the Equality Act 2010 and the previous legislation is victimisation. Under the Equality Act 2010, victimisation occurs where one person (A) subjects another (B) to a detriment, because either (i) B has done a protected act; or (ii) A believes that B has done, or may do, a protected act.

The definition of protected act includes bringing proceedings under the Equality Act 2010, and essentially repeats the provisions under the previous legislation governing discrimination. Therefore, an example of victimisation would be dismissing somebody because they had alleged that they had been discriminated against on the grounds of sex.

There was however one important difference relating to victimisation between the previous legislation and the Equality Act 2010. Under the previous legislation, former employees were expressly protected against victimisation from their former employers. This was on the proviso that the acts complained of arose out of, and were closely related to, the relevant employment relationship. This would therefore govern situations where an employer continued to victimise an employee after the employment ended, an example being where an employer gives a negative reference about a former employee because that employee had asserted their rights under the discrimination legislation.

The Equality Act 2010, whilst protecting former employees from post-employment discrimination and harassment, does not expressly protect employees from post-employment victimisation.

An employment tribunal, in line with this, held that a claimant could not succeed with a claim of victimisation in respect of a negative reference provided by his former employer.

The issue has now been heard by a tribunal in a different case, and the employment judge held that the omission of post-employment victimisation was a drafting error and, as the government has not announced an intention to depart from the previous legislation and caselaw in this regard, it was appropriate to interpret the Equality Act 2010 as including post-employment victimisation. It was therefore held that the victimisation provisions do apply to former employees.

As this decision was only at tribunal level, it is not binding upon any future tribunal. However, it is likely that this will be the interpretation of tribunals going forward unless and until the Equality Act 2010 is amended.

In any event, employers should avoid giving negative references, or subjecting a former employee to any other detriment post-employment, where that employee has done, or is believed to have, a protected act to avoid any potential arguments regarding victimisation.

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