Victimisation in References

13 Mar 2012

There has been an important decision on victimisation claims this month from an Employment Tribunal in the case of Jessemey v Rowstock Ltd and Another.

Mr Jessemey was dismissed and he brought claims against his former employer for age discrimination and unfair dismissal.  After bringing his claims, the employer provided an unfavourable reference about Mr Jessemey, who then issued a new claim for victimisation.

As many of you will know, victimisation occurs where a person is subjected to a detriment because that person has raised a complaint of discrimination or harassment.  Mr Jessemey’s argument was that the Company had provided a detrimental reference because of his claim of age discrimination.

The Employment Tribunal held that the reference was so unfavourable that almost any employer would refuse to offer Mr Jessemey employment.  The Tribunal also found that the Company had provided the unfavourable reference because Mr Jessemey had issued Tribunal proceedings.

On that basis, you would assume Mr Jessemey would succeed in his claim for victimisation.

He didn’t.

The Judge noted that, although previously employees had been able to bring claims for victimisation that occurred after their employment had terminated, the Equality Act 2010 expressly excludes post-termination victimisation.

Unless and until the wording of the Equality Act is amended or a higher Court concludes otherwise, this appears to leave us with the, almost certainly unintended, result that employers cannot be liable for acts of victimisation post-termination.

Nevertheless, this case should not be seen as giving employers a green light to treat employees badly after termination.