Last year we reported on two conflicting decisions by the Employment Appeal Tribunal concerning post-employment victimisation and whether it is prohibited by the Equality Act 2010.
In Rowstock Ltd and another v Jessemey (where a victimisation claim was brought by an ex-employee against his former employers for giving a bad reference), the EAT upheld a tribunal’s decision that post-employment victimisation is not unlawful under section 108 of the Equality Act. However, within two months of the EAT’s judgment being handed down in Jessemey, another EAT ruled that post-employment victimisation is protected under the Equality Act in the case of Onu v Akwiwu and another (where an ex-employee brought a victimisation claim against her former employers after being threatened by them).
Section 108(7) prohibits post-employment harassment and discrimination but does not prohibit post-employment victimisation. The section specifically excludes victimisation by stating that “conduct is not a contravention of this section in so far as it also amounts to victimisation.” The EAT panel in the case of Jessemey stated that, because of the wording of section 108, “no judicial tool is available to make available a remedy which the words used by Parliament have simply stated shall not be available,” but noted that the Equality Act did not comply with the Equal Treatment Directive. In contrast, the EAT panel in the case of Onu ruled that if the Equality Act did not accord with EU law, then the tribunal was required to interpret the statute in a manner which was consistent with EU law.
The Court of Appeal last week determined the position on post-employment victimisation in the case of Jessemey. The court held that ex-employees are protected from victimisation under the Equality Act and employers who give a bad reference because a discrimination claim has been made against them by an employee will be liable to pay compensation. The court did not hesitate to find that the apparent failure of the Equality Act to proscribe for post termination victimisation was clearly a drafting error and that interpreting the Equality Act in accordance with EU Law “would not only be consistent with the fundamental principles of the Act and “go with the grain”: it in fact represents what the draftsman intended.”
Employers should always act cautiously when giving references in respect of former employees, particularly those where the employer-employee relationship may have broken down for whatever reason. Employers are not obliged to give work references unless they have agreed to. In giving references employers should make sure the reference is fair and accurate. The reference can be brief but any reference (or decision not to give a reference) should not be clouded by any unfair dismissal or discrimination issues that may have arisen.