Equality Act 2010: No Protection Against Post-employment Victimisation

An employment tribunal has held that post-employment victimisation is not unlawful under the Equality Act.　

In Jessemey v Rowstock Ltd and another Mr J was dismissed by his employer, R, and brought an age discrimination claim. Not long after lodging the claim Mr J requested a reference, and although R provided one it was unfavourable. On the basis of this Mr J added a victimisation claim to his age discrimination complaint.　

In cases brought under pre Equality Act 2010 legislation the House of Lords held that post employment discrimination, including victimisation, was covered by the definitions of discrimination, even though post employment victimisation was not specifically referred to. However, in this case the Employment Tribunal looked at section 108 of the Equality Act. This specifically prohibits post-employment discrimination and harassment but does not prevent post-employment victimisation. In fact, section 108(7) expressly provides that victimisation is not covered by the Act's post-employment provisions.　

The tribunal was not directed to the leading case on the earlier legislation, Rhys-Harper v Relaxion Group, and so it is possible that it would have come to a different result if it had been considered. However, it is hard to see how a tribunal can get past the express wording of section 108(7), that " conduct is not a contravention of this section [s 108(7)] in so far as it amounts to victimisation".