The Employment Appeal Tribunal (“EAT”) has held in Rowstock Ltd v Jessemey that the Equality Act 2010 does not provide a cause of action or remedy in respect of post-termination victimisation.
Kate Fretten, Employment Partner, says "The appellant was dismissed by reason of retirement when he reached 65. In dismissing him the employer had failed to comply with the statutory retirement procedures, and the appellant claimed unfair dismissal and age discrimination." As a consequence of the claim, the employer provided him with a very unfavourable reference and a victimisation claim resulted. The employer contended that the Equality Act 2010 specifically dis-applies the anti-victimisation provisions in circumstances where the employment relationship has ended. The employment tribunal agreed, and the Equality and Human Rights Commission intervened in the appeal of that decision.
All the parties accepted that if the above decision was correct its effect would not be compatible with the Equal Treatment Directive, but having reviewed the authorities on statutory construction the EAT concluded that it would have exceeded its judicial remit if it were to construe otherwise. Therefore, no cause of action or remedy is available under the Equality Act 2010 for post-termination acts of victimisation. Permission to appeal has understandably been granted, but it may require Parliamentary intervention to close this loophole, ensuring continuity with the previous law and compliance with the Directive.
Get in touch if you need more information on this topic. You should find the other articles in April's employment newsletter of interest.
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