Court of Appeal confirms post-termination victimisation is unlawful

By Mary Clarke

The Court of Appeal has confirmed that post-termination victimisation is prohibited by the Equality Act 2010. Its decision brings welcome clarification to this issue following the conflicting decisions of the Employment Appeal Tribunal (EAT) in the cases of Rowstock Ltd v Jessemey and Onu v Akwiwu. The Court of Appeal has found that the Equality Act 2010 contains a drafting error in failing to explicitly make post-termination victimisation unlawful but that it is clear that the draftsman and Parliament had intended to outlaw this type of conduct.

We reported on the conflicting case law in our earlier article, ‘EAT sends out confusing messages about post-employment victimisation’. In the March 2013 Jessemey case, the EAT found that while it was ‘highly unlikely’ that Parliament intended to omit protection for post-employment victimisation, it had done exactly that and therefore such conduct was not prohibited. In May 2013, however, in Onu, the EAT found that the Equality Act 2010 could be interpreted as prohibiting post-termination victimisation.

The cases of Jessemey and Onu were considered by the Court of Appeal together. The court began by reviewing the pre-Equality Act 2010 case law and, in particular, the case of Rhys-Harper v Relaxion Group plc, which authoritatively determined that victimisation of former employees was unlawful. The Court of Appeal also considered the pre-Equality Act regulations relating to sexual orientation, religion/belief and age and noted that this legislation also made post-termination victimisation expressly unlawful. The Court of Appeal said ‘the upshot… is that at the time that the 2010 act was drafted it was well-established that post-employment victimisation was unlawful’…

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