28th March 2013

Tribunal Tales – Can You be Victimised After Your Employment has Terminated?

Victimisation is where someone is subjected to a detriment because they have brought discrimination proceedings (or threatened to do so) against their employer. Prior to the Equality Act 2010, a House of Lords decision had confirmed that a former employee could bring a victimisation claim where that victimisation took place after the termination of the employment. In that case, the alleged victimisation was the giving of a poor reference.

However, when the Equality Act 2010 was enacted, for some reason the relevant section made it very clear that post-employment victimisation was not unlawful. This, despite the fact that the Equality Act was not designed to change the law in this area. So, what would tribunals make of the clear wording of the legislation on the one hand, and the existing House of Lords authority on the other?

Two tribunals took differing views. One said it could not go behind Parliament’s back and had to give the legislation its ordinary meaning. The Claimant’s complaint of post-employment victimisation therefore failed. Another however decided that the section in question was a clear drafting error, and interpreted the section in such a way that the claimant’s claim was allowed to proceed.

The Claimant in the first case has now seen his appeal rejected. The Employment Appeal Tribunal (EAT), while accepting that it was highly unlikely Parliament had intended for the law to change in this way, considered itself unable to read around the clear words of the Equality Act. The position at the moment therefore is that an employee cannot make a claim for post-employment victimisation.

However, that may not be the last word on the matter. The EAT has given permission to the employee to appeal to the Court of Appeal. So employers should still exercise restraint in dealing with departed employees in these circumstances, especially where the giving of references is concerned.

28th March 2013