Mary Clarke, a partner in our Manchester office, comments:
The Court of Appeal has confirmed that post-termination victimisation is prohibited by the Equality Act 2010. Its decision brings welcome clarification to this issue following the conflicting decisions of the EAT in the cases of Rowstock Ltd v Jessemey and Onu v Akwiwu. The Court of Appeal has found that the Equality Act 2010 contains a drafting error in failing to explicitly make post-termination victimisation unlawful but that it is clear that the draftsman and Parliament had intended to outlaw this type of conduct.
We reported on the conflicting case law in our earlier article, “EAT sends out confusing messages about post-employment victimisation“. In the March 2013 Jessemey case, the EAT found that while it was “highly unlikely” that Parliament intended to omit protection for post-employment victimisation, it had done exactly that and therefore such conduct was not prohibited. In May 2013, however, in Onu, the EAT found that the Equality Act 2010 could be interpreted as prohibiting post-termination victimisation.
The cases of Jessemey and Onu were considered by the Court of Appeal together. The Court began by reviewing the pre-Equality Act 2010 case law and, in particular, the case of Rhys-Harper v Relaxion Group plc which authoritatively determined that victimisation of former employees was unlawful. The Court of Appeal also considered the pre-Equality Act regulations relating to sexual orientation, religion/belief and age and noted that this legislation also made post-termination victimisation expressly unlawful. The Court of Appeal said “the upshot….is that at the time that the 2010 Act was drafted it was well-established that post-employment victimisation was unlawful”.
The Court of Appeal went on to consider the provisions of the Equality Act 2010 and, in particular, section 108. It said that a problem arose because section 108 explicitly proscribes discrimination and harassment arising out of a previous relationship, but contains no equivalent provision for victimisation. On the contrary the legislation suggests that post-termination conduct is not prohibited in so far as it amounts to victimisation. However, the Court of Appeal said that once the matter is considered in context, it is clear that this is not what the draftsman intended. In support of this it said:
pre-2010 post-termination victimisation was unlawful;
the Government had not given any indication it had intended to withdraw any protection previously enjoyed by former employees;
the Explanatory Notes to the Equality Act 2010 refer to separate victimisation provisions;
if post-termination victimisation was not unlawful the UK would be in breach of EU law;
there is no apparent rational basis for treating post-termination victimisation differently from post-termination discrimination and harassment.
The Court of Appeal therefore went on to consider how far it could go in correcting the drafting error. It found that it was “plainly” possible to imply words into the Equality Act 2010. It also said that this case met the requirements set out in earlier case law which established that in order to correct drafting mistakes the court must be abundantly sure of (1) the intended purpose of the statute or provision in question; (2) that by inadvertence the draftsman and Parliament failed to give effect to that purpose in the provision in question; and (3) the substance of the provision Parliament would have made, although not necessarily the precise words Parliament would have used, had the error been noticed.
The Court of Appeal therefore decided it was possible to insert at the end of section 108 (1) the sentence, “In this sub-section discrimination includes victimisation”, thereby making post-termination victimisation unlawful.
This decision clears up confusion over the extent of protection enjoyed by former employees. Although not welcome news for employers, it does not impose any additional obligations to those which existed pre-Equality Act 2010. Employers must therefore refrain from treating former employees unfavourably in the event that they bring discrimination proceedings. This is most likely to arise in relation to reference requests and, in this regard, employers should ensure they act in accordance with their normal HR procedures.