What happened?

An employee who claims discrimination is protected against victimisation by the employer, which means that the employee has the right not to be treated less favourably by the employer because of the fact that he or she has claimed discrimination. Historically, protection against victimisation covered both current and former employees.

When the Equality Act 2010 came into force, however, it was less clear whether former employees continued to have this protection. Although the wording of the statute expressly protects former employees from post-employment harassment and discrimination, there is no mention of victimisation.

This uncertainty has now been resolved by the Court of Appeal in Jessemey v Rowstock and anor, which decided that the failure of the Act to cover victimisation by a former employer was a drafting error. It decided that victimisation of a former employee is prohibited by the Act and is therefore unlawful.

What does this mean?

Employers must not victimise former employees who have raised discrimination claims. This can include providing employees with an unfavourable reference because they have brought a claim, as was the case in Jessemey, or refusing to provide a reference at all contrary to the employer’s policy.

What should we do?

Ensure those in the front line of dealing with former employees, whether by providing references or parental leave information to new employers, or financial details for state benefits, are aware of the fact that they should be consistent in how they treat former employees and not retaliate against an employee for bringing a discrimination claim.