April 3, 2014

Post termination victimisation is unlawful

The Court of Appeal considered that this was a drafting error and there was no reason why the Equality Act should not be construed to allow claims for post employment victimisation to be brought in order to comply with EU law. As a brief reminder of the facts, the Claimant was dismissed on the grounds of retirement and issued proceedings for unfair dismissal and age discrimination. Subsequently he found that his employer had given an unfavourable reference to a potential new employer and he brought a victimisation claim. While he won on the unfair dismissal and age discrimination claims, the victimisation claim was rejected even though the Tribunal found that the detrimental reference was given precisely because he had pursued Tribunal proceedings. The reason for this is because of the wording of section 108 (7) of the Equality Act, specifically excluding post employment victimisation.

However, this has now been resolved by the Court of Appeal’s judgement that the wording of this section in the Equality Act is a drafting error and post termination victimisation claims should be allowed.

This legal update is provided for general information purposes only and should not be applied to specific circumstances without prior consultation with us.

For further details on any of the issues covered in this update please contact Gemma Ospedale, Partner in Employment on 020 7583 2222

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