EAT sends out confusing messages about post-employment victimisation

By Benedict Gorner

Before the Equality Act 2010 came into force in October 2010, legislation and case law made clear that ex-employees were protected from victimisation at the hands of their former employers (provided that the acts complained of arose out of and were closely related to the employment relationship). However, an apparent drafting error in the Equality Act 2010 suggests that ex-employees are no longer protected in this way. This is a surprising lacuna in the legislation and one that is causing some uncertainty. For employers, this uncertainty is particularly unwelcome — getting it wrong could result in successful victimisation claims and significant liabilities.

The issue has recently been considered by the Employment Appeal Tribunal (EAT) in two separate cases. Unhelpfully, however, the EAT has reached a completely opposite conclusion in each case — holding in the first case that post-employment victimisation is no longer prohibited and in the second holding that it is.

In March 2013, the EAT gave judgment in the case of Rowstock Ltd v Jessemey. In this case, the employee was dismissed by his employer. The ex-employee brought claims against his former employer including an age discrimination claim. Shortly afterwards, the employer provided the ex-employee with an unfavourable reference. This then led to the ex-employee bringing a victimisation claim as well…

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