Post-Termination Victimisation Unlawful under Equality Act

The Court of Appeal has ruled that victimisation by an employer after employment has terminated is unlawful under the Equality Act 2010.

Due to the drafting of the relevant provisions of the Equality Act, the question of whether it protects against post-employment victimisation has been open to doubt. 

In Jessemey v Rowstock Ltd, J claimed that he was given a bad reference because he had made a complaint of age discrimination and that this amounted to victimisation contrary to the Equality Act. The employment tribunal accepted that the reason for the poor reference was the age discrimination complaint but held that the Equality Act does not protect against post-termination victimisation. The EAT agreed but the Court of Appeal has now overturned those decisions.

It is helpful that the previous uncertainty over this issue has now been resolved. Employers should have clear policies on who can provide references and what should be included.  They should also ensure that those providing references understand that they cannot refuse to provide a reference, or provide a bad reference, because the employee has made a complaint of discrimination, issued tribunal proceedings, given evidence in connection with discrimination proceedings or done anything else under or by reference to discrimination laws.