Post-termination victimisation – rectifying the drafting error in the Equality Act 2010

Two recent cases have affirmed that post-employment victimisation is unlawful under the Equality Act 2010 (EqA), despite a drafting error resulting in a failure to expressly prohibit such behaviour within the EqA.

The cases of Jessemey v Rowstock Ltd and anor and Onu v Akwiwu and anor confirmed that words could be implied into the EqA to ensure its consistency with EU Law. Whilst previous legislation and case law expressly prohibited post-employment victimisation, section 108 EqA failed to do so – merely prohibiting discrimination and harassment arising out of, or closely connected to, a relationship that has ended.   Clearly that cannot have been the intention but it was the result, giving rise to two key cases.

Jessemey in the Employment Appeal Tribunal

In Jessemey, the Claimant brought unfair dismissal and age discrimination proceedings after being dismissed because he had turned 65. The Claimant subsequently received a poor reference and brought a claim alleging that he had suffered post-employment victimisation because he had initiated age discrimination proceedings against the firm. Both the Employment Tribunal and the Employment Appeal Tribunal (EAT) accepted it was doubtful that Parliament had intended to overlook prohibiting post-employment victimisation and alluded to the possibility of reading domestic legislation in line with EU law (the approach established in Ghaidan v Godin-Mendoza). However, they concluded that there were limits to how far they could go and the Claimant was left to appeal to the Court of Appeal (CA).

Onu v Akwiwu in the Employment Appeal Tribunal

Prior to the Claimant’s appeal in Jessemey being heard, Onu v Akwiwu went before the EAT. The Tribunal felt that the Parliamentary draftsman had intended post-employment victimisation to remain unlawful, and considered that section 39(4) EqA was the only provision which could provide for that. Section 39(4)EqA makes reference to ‘an employee of’ a firm, and the Tribunal considered that this could be logically applied to capture former employees. In this way, they construed domestic law in such a way as to reflect the provisions of EU law and the way the EAT felt the Parliamentary draftsman had intended the EqA to be read.

Jessemey in the Court of Appeal

The Court of Appeal noted that although post-employment victimisation was not expressly prohibited in the EqA making such victimisation lawful was clearly not what Parliament intended. When the EqA was drafted, post-employment victimisation was unlawful and there was no suggestion (including within the explanatory notes to the EqA) that Parliament intended to change this. Furthermore, the UK would be in breach of EU law obligations if post-employment victimisation was permitted.

The CA felt the EqA should be read in line with Ghaidan, in which it was established that domestic legislation should be read in accordance with EU law, permitting words to be implied to ensure compliance. Furthermore, the CA alluded to Vodafone 2 v Revenue & Customs Commissioners, where it was held that, when reading words into legislation, such words must ‘go with the grain of the underlying legislation’ and ensure compatibility with its ‘underlying thrust’.

It is also worth noting that had the above argument failed, the Claimant would have argued that the necessary wording could have been construed by virtue of domestic construction (similarly to Onu v Akwiwu) in line with Inco Europe Ltd v First Choice Distribution. In that case, it was stated that the court must be a) certain of the intended purpose of the statute, b) certain that the draftsman failed to give effect to this purpose and c) certain of the substance of the provision that would have been drafted had no error occurred. The CA accepted that this was the case here and that this argument would have been successful had it been applied.

Conclusion

Thanks to these two cases we now have express confirmation that post-employment victimisation is prohibited despite the absence of express wording to that effect in the EqA. Certainly we are all grateful for the clarity but no doubt a great deal of time and expense could have been spared had the draftsman expressed Parliament’s intentions more clearly within the EqA. As they say, the devil is in the detail!