Post-Employment Victimisation

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The term ‘victimisation’ is often used in the workplace, but frequently mis-applied. People generally talk about being victimised in the context of being ‘picked on’ or somehow singled out for less favourable treatment. However, ‘victimisation’ has a rather more strict definition in employment law.

Employment Law

Under the Equality Act 2010, a person A victimises another person B if A subjects B to a detriment because B does a protected act or A believes that B has done or may do a protected act. The protected acts are also defined and include, for example, bringing proceedings under the Equality Act. So, for example, A victimises B if B brings a claim of race discrimination against A and A dismisses B because of this.

For example, the case of Rowstock Limited v Jessemy deals with the situation of post-employment victimisation. Mr Jessemy worked for Rowstock Ltd. The Company dismissed Mr Jessemy saying that they did not wish to employ men over 65. Mr Jessemy brought proceedings for age discrimination. The Company then gave Mr Jessemy a poor reference. Mr Jessemy claimed that he had been victimised by the Company by reason of the poor reference because he had brought a claim of age discrimination.

The Employment Tribunal held that Mr Jessemy’s dismissal constituted unlawful age discrimination. It also found that the poor reference had been given because Employment Tribunal proceedings had been pursued. However, the Tribunal held that post-employment acts of victimisation are not rendered unlawful by section 108 of the Equality Act that is entitled ‘Relationships that have ended’ and to sub-section (7) that provides that ‘conduct is not a contravention of this section in so far as it also amounts to victimisation of B by A.’ The Employment Appeal Tribunal upheld this decision saying that the effect of section 108(7) was to produce a lacuna in the statutory scheme of protection from victimisation but ultimately held that it was not within its power to ‘plug the gap’.

The Employment Appeal Tribunal reached the opposite conclusion in the case of Onu v Akwiwu. Ms Onu was treated badly by Mr & Ms Akwiwu. She brought claims of race discrimination following which Mr Akwiwu spoke to Ms Onu’s sister saying that Ms Onu had sued him and that ‘if she thought things would end there she was wrong,’ that she (Ms Onu) ‘would suffer for it’ and that the sister should get Ms Onu to stop. Ms Onu claimed victimisation. The Employment Tribunal dismissed the victimisation claim and Ms Onu appealed. The Akwiwus questioned whether the victimisation claim could proceed in so far as the employment relationship had ended.

The Employment Appeal Tribunal held that where there are European obligations to provide a remedy for post-termination victimisation, this must be approached in two stages: first to enquire what the meaning of the statute is, if construed as a domestic statute, and if that construction would not accord with the European obligation to ask whether it might be possible nonetheless to interpret it to do so, even if that might involve writing words into or omitting them from the legislation.

Applying the above, the Employment Appeal Tribunal rejected a ‘domestic construction’ of s.108(7) that has the effect that victimisation cannot be sued for where the employee no longer works for the employer. Having reached this conclusion the Employment Appeal Tribunal held that there was no need to consider European obligations but stated that national courts must interpret domestic statutory provisions in a way compatible with the applicable EU directive, which would argue powerfully for an interpretation that provides a remedy for post termination victimisation.

Permission to appeal to the Court of Appeal has been granted. In the meantime, victimisation claims in respect of acts that occur post-employment should still be brought.

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