Can an individual make a claim in relation to post-employment victimisation? This is the question the Court of Appeal was asked to decide in the recent case of Jessemey v Rowstock Ltd.
The facts of the case were straightforward. In June 2011 Mr Jessemey was dismissed when he reached 65. He made tribunal claims of unfair dismissal and age discrimination. Mr Jessemey approached an employment agency seeking work but the reference supplied to them by his former employer was a poor one. Mr Jessemey believed that the reason his reference was poor was because he had made claims, so he lodged a further claim alleging that this amounted to victimisation. The tribunal whilst finding in his favour on the unfair dismissal and age discrimination claims rejected his claim of victimisation.
Prior to the coming into force of the Equality Act 2010 it was well established that any form of post-employment discrimination, including victimisation, was unlawful and could therefore be the subject of a tribunal claim. So why was Mr Jessemey’s victimisation claim rejected? In simple terms both the tribunal, and on appeal the Employment Appeal Tribunal (EAT), concluded that the wording of the Equality Act did not provide any remedy for post-employment victimisation.
Curiously a similar case, but this time related to race rather than age, came before the employment tribunal shortly after the Jessemey case and was decided the opposite way i.e. that there was actionable victimisation. This left the uncomfortable position of 2 conflicting decision hence the further appeal to the Court of Appeal.
The Court of Appeal had no hesitation in saying that post termination victimisation was unlawful and covered by the 2010 Act. How did they reach this conclusion? Well on the one hand it was clear that there is a “gap” in the Equality Act 2010 on this point but the court said that it was equally clear that the result was not what the draftsman or Parliament intended, in essence there had been an error in the drafting of the 2010 Act. Key factors were:
1. Prior to the 2010 Act the position in this areas was well established;
2. There was no indication that when introducing the 2010 Act the government intended to change the law;
3. The explanatorynNotes to the 2010 Act give the impression that post termination victimisation remained unlawful;
4. If this form of victimisation were not unlawful the UK would be in breach of its obligations under EU law; and
5. There is no rational basis for treating post termination victimisation differently from post termination discrimination or harassment. Part of the problem here arises from definitions and the fact that the 2010 Act treats discrimination, harassment and victimisation as separate issues whereas previously victimisation was seen as a sub-category of discrimination.
In summary therefore we are back to where we started and post termination victimisation can properly be the subject of a claim.
This is yet another example of what has become a regular trend of courts interpreting legislation on a much wider basis than just looking at the bald words of the Act or Regulation.