Testing the limits of the Equality Act 2010


Adam Ohringer considers the recent EAT Judgment in  Butterworth v The Police & Crime Commissioner’s Office for Greater Manchester.


The Equality Act 2010 (EqA) prohibits many instances of discrimination against ex-employees.  Section 108 states:

  1. A person (A) must not discriminate against another (B) if…(a) the discrimination arises out of and is closely related to a relationship which used to exist between them, and (b) conduct of a description constituting the discrimination, would if it occurred during the relationship, contravene this Act.

Despite an irregularity in the drafting of this provision, the Court of Appeal held in Rowstock Ltd v Jessemey [2014] ICR 550 that the prohibition also extended to victimisation.

The scenario

The question in Butterworth was: what happens if the employer is succeeded by another entity after employment has terminated?  In Butterworth, this occurred following a statutory reorganisation, but the same situation could arise following a TUPE transfer.

The Judgment

The Employment Appeal Tribunal (Langstaff J(P)) decided that such a situation would not be covered by the EqA.  The further argument that protection was necessary in such circumstances under European law was also rejected.

Section 108 only extends protection to the conduct of ex-employers and not of an entity which has taken the place of the ex-employer.

The EAT added that the provisions in s.47B of the Employment Rights Act 1996, which has been held in Woodward v Abbey National (No.1) [2006] ICR 1436 to prohibit post-employment detriments on the ground of a Protected Disclosure, is also limited in the same way.

Ms Butterworth was represented by Adam Ohringer and instructed by Philip Harman of DWF LLP.  A full text of the Judgment can be accessed here.