UK: Post-employment conduct: whistleblowing disclosures protected; victimisation not prohibited by Equality Act

Case law has established that subjecting an employee to detriment post-employment for a whistleblowing disclosure made during employment is unlawful.  In Onyango v Berkeley the EAT has now confirmed that there is protection even if the disclosure itself is made after the employment has ended.

In contrast, the EAT in Rowstock v Jessemey has ruled that, due to a drafting error, the Equality Act does not prohibit post-employment victimisation. This commonly consists of an employer giving an unfairly negative reference or refusing to give a reference (when it is normal practice to do so) because the employee has made or been involved in a discrimination claim.  Leave to appeal was given;  if the appeal fails, the Government will need to amend the Act as this position contravenes EU law.