29th February, 2012
It has recently been held by an employment tribunal in Jessemey v Rowstock Ltd and another that post-employment victimisation is not unlawful under the Equality Act 2010 (the Act).
Whilst section 108 of the Act does protect against post-employment discrimination and harassment, it does not expressly protect against post-employment victimisation. Section 108(7) of the Act goes as far as to state that conduct amounting to victimisation will be dealt under the victimisation provisions and not the post-employment section. The victimisation provisions in the Act deal expressly with victimisation against current employees.
Jessemey involved an employee that brought a claim against his employer for age discrimination and unfair dismissal after being dismissed. The employer provided an unfavourable reference for the employee and as a result the employee pursued a further claim against his employer for victimisation.
The employment tribunal accepted that there had been an act of victimisation since the unfavourable reference was provided because the employee had brought tribunal proceedings against it. However, the tribunal held that the claim could not succeed because section 108 of the Act does not prohibit post-employment victimisation, only post-employment discrimination and harassment.
Employees wishing to bring post-victimisation claims might seek to rely on Rhys-Harper v Relaxion Group plc; D’Souza v London Borough of Lambeth; Jones v 3M Healthcare Ltd. In that case, the House of Lords held that the pre-Equality Act 2010 legislation covered post-employment discrimination (including victimisation) even though the legislation at that time did not expressly protect former employees.
The employee in Jessemey does not appear to have relied on Rhys-Harper so it remains to be seen what the outcome will be if and when that decision is taken into account.