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Post Employment Victimisation

An employee brings a claim for unlawful discrimination against his former employer. As a result, the former employer provides him with a negative reference. What can he do about it?

The various strands of discrimination legislation, relating to sex, race, disability and age, were brought together under the Equality Act 2010. The earlier legislation was amended to expressly protect individuals against such post-employment victimisation (as long as the acts complained of arose out of and were closely related to the relevant employment relationships), in accordance with the requirements of European law. However, the victimisation provisions in the Equality Act do not deal with post-termination treatment, leaving a gap in the legislation.

There is no reason to believe that Parliament intended to remove protection for post-employment victimisation: the aim of the Equality Act was to harmonise and strengthen discrimination law, and it seems likely that this was an oversight.  It has fallen to the employment tribunals and appeal tribunals to decide whether they can actually interpret the Equality Act as providing this protection, despite the omission of express wording to that effect.

The Employment Appeal Tribunal (“EAT”) recently held that employees are not protected against victimisation by their former employer after their employment has terminated in a case called Rowstock Ltd & another v Jessemey (which involved a former employee who brought a claim for age discrimination and was subsequently provided with an unfavourable reference). Then, only last week, a differently constituted EAT, in a case called Onu v Akwiwu (which involved threats made against a former employee who had brought a race discrimination claim) reached the opposite conclusion, i.e. that employees are protected against such victimisation.

The Court of Appeal will soon have the opportunity to consider and (pending any amendment to the legislation or a further appeal to the Supreme Court) resolve this issue, as Mr Jessemey's case is scheduled to be heard no later than January 2014.

Employees who suffer post-employment victimisation should continue to put in claims and seek to rely on the decision in Onu – although employers will, of course, cite the decision in Jessemey is defending or seeking to settle such claims.

Employees might also be able to bring a claim for whistleblowing in some cases.  The Employment Rights Act 1996 (“ERA”) prohibits former employees from being subjected to a detriment on the basis that they have made a protected disclosure – and, for the time being, this includes disclosing to their employer that someone has failed to comply with a legal obligation, such as to not discriminate against them contrary to the Equality Act. However, the Government is proposing to amend the ERA from this autumn so that protected disclosures will only attract whistleblowing protection if made in the public interest, and this will limit the availability of this route.

If there is no change in the Equality Act to expressly extend protection to post-employment victimisation and the courts interpret the Act in accordance with the EAT’s decision in Jessemey, a route for employees left without protection might be to bring a claim against the Government for failing to implement European law.

For advise on discrimination in relation to employment, whether you are an employer or an employee, contact me at john.merry@lblaw.co.uk or on 01952 211010.