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Post termination victimisation not covered under Equality Act
Currently, the Equality Act provides no remedy for employees for acts of victimisation done by an employer once the employee’s employment has ended. As a result of the case in this section, the law may well be changed. In Rowstock Limited v Jessemey, the EAT has upheld an Employment Tribunal decision that a Claimant who was dismissed in breach of the then statutory retirement procedures and who then issued a claim, was subsequently victimised for bringing the claim when the employer gave him an unfavourable reference. Consequently he brought a victimisation claim. However both the Tribunal and the EAT found that the Equality Act did not provide a remedy for post termination victimisation. The Equality and Human Rights commission intervened in the appeal to the EAT and all the parties accepted that, if this was correct, it would not be compatible with the Equal Treatment Directive. The EAT considered it would exceed its judicial remit if it construed into the relevant section wording which was directly opposite to what was expressly stated. Consequently there was no remedy available for the Claimant for the act of victimisation.
Permission is currently being sought to appeal and it is quite possible that Parliamentary intervention may be required to close this loophole.
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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