Does the Equality Act 2010 cover post-employment victimisation?
The answer is yes, in the case of Jessemey v Rowstock Limited.
Under the Equality Act 2010 (2010 Act), victimisation occurs where an employer subjects an employee to a detriment because the employee has done a “protected act” or because the employer believes that he has done or may do a protected act. Protected acts include:
• Bringing proceedings under the 2010 Act.
• Giving evidence or information in connection with proceedings under the 2010 Act.
• Doing any other thing for the purposes of or in connection with the 2010 Act.
• Making an allegation (whether or not express) that the employer or another person has contravened the 2010 Act.
The aim is clearly to make sure that people are not deterred from asserting their rights not to be discriminated against, or penalised for having done so.
In Jessemey v Rowstock Ltd, an employee claimed that he was given a bad reference because he had made a complaint of age discrimination. The employee argued that this amounted to victimisation contrary to the Eqaulity Act.
The Employment Tribunal accepted that the reason for the poor reference given to the employee was the age discrimination complaint. However, the Employment Tribunal held that the 2010 Act did not protect against post-termination victimisation.
The Employment Appeal Tribunal agreed with the Employment Tribunal but the Court of Appeal has now overturned both of those decisions.
The Court of Appeal took account of the context of the 2010 Act, the law on post-employment victimisation at the time it was drafted, the wording of the explanatory notes to the 2010 Act, and the obligations under EU law for the Act to provide protection against such victimisation. The Court of Appeal therefore found that the failure of the 2010 Act to prohibit post-employment victimisation was clearly a drafting error.
It is helpful that the uncertainty over this issue has now been resolved.
Employers should have clear policies on who can provide references and what should be included.
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