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Court of Appeal finding of post-employment victimisation clears up previous inconsistent rulings, says expert

Out-Law News | 28 Feb 2014 | 1:07 pm | 3 min. read

A company that gave a poor reference to a former employee because he had complained of discrimination during his employment will be liable to pay compensation for victimisation, the Court of Appeal has ruled.

The judgment has been welcomed by employment law experts and the Equality and Human Rights Commission (EHRC), because it clarifies that protection against victimisation contained in the Equality Act can be extended to former employees.

Employment law expert Selwyn Blyth of Pinsent Masons, the law firm behind Out-Law.com, said that the decision resolved two previous conflicting authorities. Last year, two separate cases with different panels of judges in the Employment Appeal Tribunal (EAT) came to different conclusions about whether the wording of the Equality Act covered cases of post-employment victimisation.

"Although some may see this as creating another risk for employers, in reconciling the previous conflicting authorities the Court of Appeal's decision is a very helpful one," he said.

"On the face of it, the law would appear to prevent this type of claim, but before the Equality Act came into force, post-employment victimisation was covered by case law. Although the traditional mantra is that judges cannot make law, only interpret existing law, the judges in this case got around this principle by finding that the draftsman and Parliament had excluded it from the new Act through a 'slip of the pen'. In that sense, rather than create new laws, they gave effect to what was always intended by the legislation," he said.

Employment law protects workers from victimisation by their employers as a result of a previous allegation of discrimination. It can refer to situations where people are overtly targeted with abuse or passed over for promotion, or in less obvious situations such as where a person has complained and is subsequently ostracised by colleagues. Post-employment, victimisation most commonly arises in the context of refusals to provide references, or providing a poor reference, because the individual previously alleged discrimination. In either case, the discrimination allegation does not have to be proven for a victimisation claim to succeed.

In 2010, the Equality Act replaced and consolidated a number of different laws in relation to discrimination in one legal document. Previously, case law had established that an individual could be successful in bringing a claim for victimisation which took place after the employment relationship had ended. However, the wording of the Equality Act itself was ambiguous on the issue.

The former employee in this case, Mr Pat Jessemey, had brought successful proceedings for unfair dismissal and age discrimination after he lost his job at Rowstock Ltd, a car sales and repair business in Didcot, Oxfordshire. Jessemey later went to an employment agency for help finding new work, but a director from his former firm gave him a bad reference specifically because he had made a complaint of discrimination.

The original employment tribunal accepted that the reference was poor because of Jessemey's discrimination claim, but said that post-employment victimisation was not prohibited by the Equality Act. In March 2013, the EAT came to the same conclusion. However, in a separate case in May 2013 a different panel of judges favoured a purposive interpretation of the law after extensive analysis.

At the Court of Appeal, Lord Justice Underhill said that if the relevant provisions of the Equality Act were "taken on their own and without reference to any contextual material", post-employment victimisation was clearly not covered by the law. However, he said that "once the proper contextual materials are considered" it was "equally clear that that is not the result which the draftsman intended".

"We have been referred to no indication that the government in promoting the 2010 Act intended to change the law by withdrawing, even if only as regards victimisation, the protection previously enjoyed by former employees; and it is vanishingly unlikely that that was the case," he said. "Although the Act is not formally a consolidating statute, its purpose was to re-state, with some clarifications and enhancements where necessary, existing protections against discrimination (including victimisation and harassment)."

In addition, if post-employment victimisation was not prohibited, the UK would be "in breach of its obligations as a matter of EU law", he said.

"The decision is another example of why, if you cannot provide a good reference about a former employee for whatever reason, it might be the safest course of action to state that you are not an appropriate person to provide a reference, or to stick to a bald, factual reference," said employment law expert Selwyn Blyth.

However, he noted that in certain sectors this would not be possible, such as in the financial services sector where the contents of references are prescribed by the regulators.