Claims for post-employment victimisation: a whole lot of confusion.
What is the problem?
The current position on bringing claims for post-employment victimisation is not clear. There are two recent Tribunal cases which have reached opposite conclusions. In the most recent case of Onu v Akiwiku, the Employment Appeal Tribunal (EAT) allowed a claim for post-employment victimisation. Prior to this, in Rowstock v Jessemey, the EAT had found that employees were not protected against post-employment victimisation.
Why has the confusion arisen?
The reason for the confusion lies in section 108 of the Equality Act 2010 for the following reasons:
- the section specifically states a person must not discriminate against nor harass another if the relevant act arises out of and is closely connected to a relationship which used to exist;
- the section does not specifically state that a person must not victimise another in the same situation; and
- the section states that 'conduct is not a contravention of this section insofar as it also amounts to victimisation'.
It may appear obvious that this section was intended not to protect employees against victimisation by their employer post-employment - but it seems this can not be the case!
The Equality Act 2010 explicitly provides for cases of discrimination and harassment to be brought for acts which take place post-employment. However, it does not provide the same protection for post-employment victimisation. It is hard to believe parliament intended to also catch victimisation in these circumstances when the legislation is drafted as it is.
Unfortunately, matters are confused by the requirement to comply with the Equal Treatment Directive. In order to determine the meaning of the Equality Act 2010, two questions should be considered:
1) How is the statute interpreted from a purely domestic perspective?
2) How can the statute be interpreted to comply with EU law?
The second question only needs to be asked if the first question does not provide results which show compliance with EU law. The second question is intended to give some room for manoeuvre, so that if on first interpretation the legislation does not appear compliant, there is potential for it to be read in a different light. It is this ambiguity that has led to confusion.
How should these conflicting authorities be resolved?
As the decisions in these cases are irreconcilable, it will now be for the Court of Appeal to decide the position. The European Court of Justice held in Coote v Granada Hospitality that protecting employees against post-employment victimisation is a requirement of EU law. In the case of Rhys-Harper v Relaxation Group plc the House of Lords also held, pre-Equality Act 2010, that post-employment victimisation is prohibited and shortly after, the Government amended the legislation to ensure compliance with EU law. It would seem that EU law requires that employees are protected in this way and it will be difficult for the Court of Appeal to justify an outcome which does not support this position.
Until the Court of Appeal resolves this issue, employers should take care to make sure they are not making themselves vulnerable to potential claims of post-employment victimisation. This may be particularly relevant when providing past employees with references or dealing with post-employment issues.