Conflicting EAT Decisions On Post-Employment Victimisation

Two recent EAT decisions have reached opposite conclusions on whether the Equality Act 2010 covers victimisation after an employee has left employment. This aspect of discrimination law has given rise to some confusion because the Equality Act specifically excludes the right to bring post-employment victimisation claims. It appears that this is a drafting error, since prior to the Equality Act, victimisation taking place after employment ended was clearly covered by UK discrimination law. It is also a requirement of EU law.

In the first case, Rowstock Ltd v Jessemey, Mr Jessemey was dismissed by reason of retirement. He subsequently brought age discrimination and unfair dismissal claims. Rowstock then provided a poor reference about Mr Jessemey to an employment agency, after which he brought a further claim for post-employment victimisation. The EAT agreed that he had been given the poor reference because he had brought a discrimination claim but held that, on a literal interpretation, the Equality Act did not protect post-employment victimisation. Whilst acknowledging that this was probably a drafting error, the EAT said that it was not legally possible to rule in his favour.

By contrast, in the later case of Onu v Akwiwu, the EAT held that individuals are protected against post-employment victimisation. Ms Onu, a Nigerian domestic servant, brought various Tribunal claims against her former employer, including a race discrimination claim...