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Case update (1): Post-employment victimisation protected

mock-employment-tribunalSummary:  Can an ex-employee bring a claim of victimisation where the alleged act has taken place after the end of employment?

Yes, says the Court of Appeal in Jessemey v Rowstock Ltd and another available here.

This decision overturns the previous EAT ruling that found that post-employment victimisation was not prohibited.  For the EAT decision see our May 2013 Newsletter Post-employment victimisation protected, or is it….?

Facts:  The Equality Act 2010 clearly prohibits post-employment discrimination and harassment, but excludes victimisation from its scope. Although the EAT agreed that there was no intention to remove protection against post-employment victimisation in the Act, it decided it was impossible to interpret the Act in a way that would be consistent with maintaining that protection.

The EAT’s decision was appealed.  The Court of Appeal found that the failure of the Act to prohibit post-employment victimisation was clearly an unintentional drafting error and that it should be protected. Further, if post-employment victimisation were not proscribed, the UK would be in breach of its obligations under EU law.

Implications:   This clarification from the Court of Appeal gives employers welcome certainty on this issue (even if perhaps unwelcome further protection for employees).

Employers should note that post-employment victimisation is now definitely prohibited by the Act and should avoid treating employees or ex-employees unfavourably on the basis they have raised discrimination complaints, including when giving job references.

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