Tribunal disagreement on post-employment victimisation will create "confusion" for employers, says expert

Out-Law News | 08 May 2013 | 9:31 am | 2 min. read

An individual can bring a claim against a former employer for victimisation that took place after the employment ended, the Employment Appeal Tribunal (EAT) has said.

Mr Justice Langstaff, President of the EAT, said that the Equality Act covered post-employment victimisation. In his ruling, he disagreed with the findings of the EAT on a similar issue, in a ruling handed down in March.

Employment law expert Selwyn Blyth of Pinsent Masons, the law firm behind Out-Law.com, said that the two contradictory decisions would create "confusion" for employers in an already complex area of law. Mr Justice Langstaff gave the parties permission to appeal his decision so that a "definitive answer may be given" by the Court of Appeal.

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. An individual could be victimised after the employment relationship ends by a refusal to provide a reference, for example. Importantly, for a victimisation claim to succeed the previous allegation of discrimination does not have to be proven.

In 2010, the Equality Act replaced a number of different laws in relation to discrimination with 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. Employment law expert Selwyn Blyth said that the wording of the Equality Act was "ambiguous" on the issue.

"The EAT ruling is a good example of a court or tribunal reading the law in a purposive way, in order to convey what the law was intended to do," he said. "Mr Justice Langstaff said that there was no indication that Parliament had intended to change the law when the Equality Act came into force in 2010. The panel in the March case, which had one of the same members as in this present case, had not come to the same conclusion."

"However, these two contradictory decisions will lead to confusion for employers in an already complex area of law. Even if an employer doesn't like its obligations under equality law, it still needs to know what those obligations are," he said.

The case involved a Nigerian woman, Ms Onu, who had been employed as a domestic servant with a Nigerian family who had later moved to London. She brought a claim against the family after her employment had ended for a number of reasons, including victimisation in the form of threats six months after she had left the job.

In his ruling, Mr Justice Langstaff said that the Equality Act did not explicitly cover victimisation of a former employee by an ex-employer, despite specifically providing that both discrimination and harassment which occur after the employment relationship ends are. However, he said that if Parliament had not intended victimisation to be covered post-termination it would be in breach of the relevant European Directives, as well as going against a 2003 decision by the House of Lords in relation to the previous law.

"Although the [Equality Act] is not expressly a consolidating statute, there is no Parliamentary material which suggests that the legislature considered for one moment that the effect of what it was doing might be to provide for such a dramatic shift in the law," he said.

Following extensive analysis, he concluded that victimisation which took place after the employment relationship had ended was covered by both domestic and European law. In addition, he pointed out that the Equality and Human Rights Commission Code of Practice on Employment covered post-employment victimisation. Although the Code does not "purport to be an authoritative statement of the law", Mr Justice Langstaff said that he was "comforted" that the Government-approved document came to the same conclusions.