Media Briefing Note: Post Termination Victimisation Unlawful, Rules CoA
27 February 2014
27 February 2014 - The Court of Appeal (CoA) yesterday confirmed that post termination victimisation is unlawful under the Equality Act 2010 in Jessemey v Rowstock Ltd – resolving conflicting Employment Appeal Tribunal (EAT) decisions on the point.
Commenting on the ruling, Elizabeth Slattery, partner in Hogan Lovells' employment team, said:
"The Court of Appeal felt able to imply a prohibition on post-termination victimisation into the Equality Act, despite clear wording to the contrary, because it was patently obvious that the failure to prohibit it was a drafting error. The fact that the UK would be in breach of its obligations under EU law if post-termination victimisation was not unlawful was also a significant factor."
Background to the case
The claim involved someone who was refused a reference because he had brought proceedings for age discrimination following his dismissal. The tribunal and EAT both found that post-termination victimisation was not unlawful under the Equality Act. Section 108, which deals with post termination victimisation, prohibited discrimination and harassment but did not prohibit victimisation. Section 108(7) expressly provides "But conduct is not a contravention of this section in so far as it also amounts to victimisation of B by A".
The CoA accepted that "on a natural reading of the relevant provisions… post-termination victimisation is not prohibited". However, there were a number of factors that indicated that this was not the result that the draftsman intended:
• Post-termination victimisation was unlawful when the Equality Act was enacted
• There was no indication that the Equality Act was intended to change the law
• The Explanatory Notes to the Act indicate that post-termination victimisation was intended to be proscribed
• The UK would be in breach of its obligations under EU law if post-termination victimisation was not unlawful
• There was no rational basis for treating post-termination victimisation differently from post-termination discrimination or harassment.
The failure to proscribe post-termination victimisation was therefore a drafting error. It was possible to imply a prohibition on post-termination victimisation into the Equality Act: this was consistent with the Act's fundamental principles and would represent the draftsman's intentions. Section 108 should therefore be read as giving effect to the EU obligation to proscribe post-employment victimisation, regardless of Section 108(7).