by Laurie Anstis on May 1, 2013
There is a problem with the drafting of the Equality Act 2010.
Victimisation, which in this sense means disadvantaging someone because they have brought a discrimination claim, or done “any … thing for the purposes of or in connection with the Act” is prohibited by section 27 of the Equality Act 2010.
The difficult question is whether this prohibition applies to a disadvantage which a person is subject to after their employment has ended. A typical example of this would be where an employer refuses to give a former employee a reference, or gives them a bad reference, because they have brought a discrimination claim against the employer.
That is dealt with by section 108 of the Equality Act 2010. That section outlaws discrimination where it “arises out of and is closely connected to a relationship which used to exist between them“, such as an employment relationship.
The snag comes with section 108(7), which says that “conduct is not a contravention of this section insofar as it also amounts to victimisation“.
That might be meant simply to prevent someone bringing two different claims arising out of the same incident, or it might have the unintended effect of preventing a victimisation claim being brought where the victimisation occurs after employment has ended.
In Rowstock v Jessemey, a division of the EAT presided over by Mr Recorder Luba QC reluctantly concluded that it had the latter effect, and that it would not be permissible to read in additional words so as to give effect to what Parliament must have intended.
A different division of the EAT, under Langstaff P, has today disagreed with the Jessemy case and concluded in Onu v Akwiku that post-employment victimisation is caught by the Equality Act 2010.
It will now be for the Court of Appeal to resolve this conflict of authority.