The devil’s in the detail – case exposes “blunder” in the wording of the Equality Act

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Posted in:Corporate and Commercial, HR and Employment|March 8, 2013 | Join the mailing list

In a recent judgment, the Employment Appeal Tribunal has said that the Equality Act 2010 does not provide protection against post-employment victimisation.

Mr Jessemey was dismissed on grounds of retirement shortly before his 65th birthday and brought claims in the Employment Tribunal for unfair dismissal and age discrimination. Then, while he was looking for alternative work, Mr Jessemey discovered
that his former employer, Rowstock Limited, had given an unfavourable reference about him to an employment agency. As a result, Mr Jessemey then brought a further claim of victimisation, saying that Rowstock had given him the bad reference because he was bringing
a discrimination claim against them.

The Employment Tribunal accepted that the reason why Rowstock provided the bad reference was indeed because Mr Jessemey had brought a discrimination claim and the Tribunal said that that was an act of victimisation as defined in the Equality
Act 2010. However, the Tribunal went on to say that, due to the way section 108 of the Equality Act is worded, victimisation which occurs after employment has ended (as was the case with Mr Jessemey) is not actually prohibited by the Act and so is not unlawful.

Mr Jessemey appealed that decision to the Employment Appeal Tribunal, but the EAT said that the Tribunal’s judgment on the wording of the Equality Act had been correct. The EAT also said, however, that it is "highly unlikely" that Parliament
intended the Equality Act not to prohibit post-employment victimisation and so it looks like there has been, in the words of the Equalities and Human Rights Commission, a "legislative blunder".

"This is a significant loophole," comments Claire Haworth of the Berg Employment Team "and it leaves people who bring discrimination claims exposed to victimisation if there employment has come to an end. It’s therefore likely that an amendment
to the Equality Act will be passed by Parliament as a matter of urgency in order to put things right and close the loophole."

For more information about any of the above or for practical advice on this or any other aspect of employment law, please contact Nigel Crebbin or Claire Haworth of the Berg Employment Team on 0161 833 9211 or email us at
nigelc@berg.co.uk or
claireh@berg.co.uk

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The information and opinions contained in this article are not intended to be comprehensive, nor to provide legal advice. No responsibility for its accuracy or correctness is assumed by Berg or any of its partners or employees. Professional
legal advice should be obtained before taking, or refraining from taking, any action as a result of this article.

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