Elizabeth Slattery, a partner in Hogan Lovells’ employment team, has commented on a Court of Appeal ruling confirming that post-termination victimisation is unlawful under the Equality Act 2010 in Jessemey v Rowstock Ltd — resolving conflicting Employment Appeal Tribunal (EAT) decisions on the point.
Slattery said: ‘The Court of Appeal felt able to imply a prohibition on post-termination victimisation into the Equality Act, despite clear wording to the contrary, because it was patently obvious that the failure to prohibit it was a drafting error. The fact that the UK would be in breach of its obligations under EU law if post-termination victimisation was not unlawful was also a significant factor.’
The claim involved someone who was refused a reference because he had brought proceedings for age discrimination following his dismissal. The tribunal and EAT both found that post-termination victimisation was not unlawful under the Equality Act. Section 108, which deals with post-termination victimisation, prohibited discrimination and harassment but did not prohibit victimisation. Section 108(7) expressly provides: ‘But conduct is not a contravention of this section in so far as it also amounts to victimisation of B by A.’
The Court of Appeal accepted that ‘on a natural reading of the relevant provisions… post-termination victimisation is not prohibited’. However, there were a number of factors that indicated that this was not the result that the draftsman intended:
- Post-termination victimisation was unlawful when the Equality Act was enacted;
- There was no indication that the Equality Act was intended to change the law;
- The Explanatory Notes to the act indicate that post-termination victimisation was intended to be proscribed;
- The UK would be in breach of its obligations under EU law if post-termination victimisation was not unlawful; and
- There was no rational basis for treating post-termination victimisation differently from post-termination discrimination or harassment.
The failure to proscribe post-termination victimisation was therefore a drafting error. It was possible to imply a prohibition on post-termination victimisation into the Equality Act: this was consistent with the act’s fundamental principles and would represent the draftsman’s intentions. Section 108 should therefore be read as giving effect to the EU obligation to proscribe post-employment victimisation, regardless of section 108(7).