Post-employment victimisation – Equality Act 2010

Prior the Equality Act 2010, discrimination legislation expressly protected former employees against victimisation at the hands of their former employers. However, it is unclear whether this protection has been sustained under the Equality Act 2010.

Although Section 108 protects former employees from post-employment discrimination and harassment, it does not expressly protect against post-employment victimisation, which could adversely impact on an employee’s re-employment prospects.

In March 2013, the EAT in Rowstock Limited and another v Jessemey (UKEAT/0112/12) held that the Equality Act 2010 does not provide protection against post-employment victimisation.

Although the EAT acknowledged that it would be desirable to reinterpret the legislation so as to provide the relevant protection it decided not to in this case although it did grant the Claimant permission to appeal.

However, in May 2013, the Employment Appeal Tribunal (Langstaff P presiding) gave its judgment in Onu v Akwiwu and another (UKEAT/0022/12) in which it departed from its position in Rowstock and held that the Equality Act 2010 does in fact protect individuals against post-employment victimisation.

The EAT felt that the relevant wording is sufficiently ambiguous to enable it to be interpreted as providing post-employment victimisation protection, as required by EU law.

The Court of Appeal will hopefully resolve this issue when it hears the appeal on Rowstock, sometime between July 2013 and January 2014.