UK: Drafting error in Equality Act revealed through case law

Prior to the introduction of the Equality Act 2010, it was clear that post-termination victimisation was unlawful. This often takes the form of employers giving ex-employees a bad reference because they have brought a discrimination claim.

The Equality Act muddied the water, due to an apparent drafting error. Section 108, dealing with relationships that have ended, states that conduct which amounts to victimisation is not a contravention of provisions in that section. It appears the drafters thought (wrongly) that post-termination victimisation was covered elsewhere in the statute.

Two recent EAT decisions have given conflicting judgments on whether former employees can make such a claim.

Victimisation excluded

In Rowstock v Jessemey the EAT decided that victimisation after employment was not covered. Jessemey was dismissed on the grounds of his age. He brought a claim for unfair dismissal and age discrimination, and the company subsequently gave him a very poor reference. The employment tribunal found it was so bad that no employer would have hired him. Jessemey won his claim for unfair dismissal and age discrimination, but his claim for victimisation was rejected by the tribunal and by the Employment Appeal Tribunal, despite the intervention of the Equality and Human Rights Commission in his support.  The EAT considered that the claim was expressly excluded by Section 108, and decided it could not create a remedy where Parliament had stated one was not available.

This was a surprising result, given that the government had given no indication that it intended to reduce the scope of employees' protection in this way.

Victimisation included

However, less than two months later, the EAT (including one of the same panel members) came to the opposite conclusion in Onu v Akwiwu. Onu, a Nigerian, worked for the Akwiwu family. She alleged that she had had her passport taken, and was required to work far in excess of the maximums set under the Working Time Regulations 1998 without proper rest breaks, for less than the national minimum wage.

After leaving employment, she launched a claim for (among other things) race discrimination. Her ex-employer then allegedly phoned Onu's sister in Nigeria and told her that "if she thought things would end there, she was wrong" and that she "would suffer for it". Shortly afterwards he called again to say the sister should get Onu to stop. On that basis, Onu claimed post-termination victimisation.

EAT reasoning

The EAT considered at great length whether a remedy was available. It took the view that section 108 only made sense if those who drafted it thought post-termination victimisation could be the subject of a claim, and the provision was aimed at preventing claimants from being compensated for it twice.

The EAT concluded that it could interpret the statute to cover post-termination victimisation, taking account of pre-Equality Act case law on the point. This conclusion was supported by the fact that the UK is obliged to provide protection from victimisation under European law, including after employment has ended. The EAT also noted that this result went "with the grain" of the legislation.

Implications for employers

Permission to appeal to the Court of Appeal was given in both cases. While waiting for the outcome of that appeal, the sensible course for employers remains as it always was – they should not victimise employees, even after termination.

Practically speaking, references are the most common area where these claims can arise (the facts in the Onu case being, thankfully, quite unusual). On that basis, it is vital that employers ensure they are consistent in this area and that managers are aware of the policy. Limited, factual references are a safe bet, but only if they are given consistently – giving a "tombstone" reference to an individual who has brought a claim when an employer normally gives detailed references could well be victimisation.

This article appeared first on CIPD website . It is authored by Hannah White, an associate in the employment team at Herbert Smith Freehills.