Equality Act 2010 Construed Purposively To Cover Post-Termination Victimisation

It has long been the case that employees are protected against victimisation which occurs after the termination of employment. Most commonly, this arises in the form of a bad reference. The case of Taiwo v Olaigbe involved more unusual circumstances. Ms Taiwo was employed by the Olaigbe family as a nanny and housekeeper, working under a migrant visa. She left her employment, complaining of mistreatment, and brought a race discrimination claim against her employers. Before her claim was determined, Mr and Mrs Olaigbe sent the hearing bundle to the UK Border Agency and asked the Agency to review Ms Taiwo's immigration status.

Upon discovering this, Ms Taiwo brought a separate claim, alleging that in asking for her immigration status to be reviewed, Mr and Mrs Olaigbe had committed an act of post-termination victimisation against her. Mr and Mrs Olaigbe attempted to get this claim struck out on the basis of an apparent loophole in the Equality Act 2010 – s108(7) of the Act expressly excludes post-employment complaints of victimisation.

At a pre-hearing review, the employment tribunal accepted that this is what s108(7) of the Equality Act states, but took the view that this must be a drafting error. Under...

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