Court of Appeal overturns Employment Appeal Tribunal decision and holds that post termination victimisation is proscribed under the Equality Act 2010


Rowstock Ltd and another v Jessemey [2014] EWCA Civ 185

The claimant in this case was dismissed on the ground that he had reached the age of 65.  He brought an unfair dismissal claim and an age discrimination claim before the Employment Tribunal. He sought the assistance of an employment agency to find other work, and his former employer gave the agency a poor reference for him. 

He therefore brought a further claim alleging victimisation under section 108(7) of the Equality Act 2010.  The Employment Tribunal and the Employment Appeal Tribunal found that even though the reason for the bad reference was that the Claimant was pursuing Employment Tribunal proceedings, the Respondent was not liable because post-employment victimisation was not unlawful under the 2010 Act.  Another constitution of the Employment Appeal Tribunal in a different case, Onu v Akwiwu [2013] ICR 1037 later came to the opposite conclusion about section 108(7) of the Act, and this was the issue before the Court of the Appeal in the instant appeal.

It was common ground between the parties that the failure of the Act to proscribe post termination victimisation was a drafting error.  This was plain from the wider contextual material. The Employment Appeal Tribunal decided that it was not possible to correct the draftsman’s error, because the wording of the statute was too explicit.

 The Court of Appeal (Underhill LJ giving the leading judgment) took a different view.  Citing the case of Ghadian v Godin-Mensoza [2004] and approving submissions made on behalf of the Claimant by Karon Monaghan QC and Chris Milsom, the court decided that since the victimisation provisions under the Equality Act 2010 implemented obligations under EU law, and section 3 of the Human Rights Act 1998 came into play, it should take a special approach to construing these provisions.  Post-termination victimisation was prohibited under EU law and Ghadian asked the question whether it was ‘possible’ to imply the words into the 2010 Act which achieved that result. The answer was ‘plainly’ yes: ‘ … the implication of such a prohibition would not only be consistent with the fundamental principles of the Act and “go with its grain”: it in fact represents what the draftsman intended.’ (Paragraph 42). Thus the appeal was successful and the case was remitted to the Employment Tribunal for the assessment of compensation.