In March 2013 the EAT found in Jessemey v Rowstock that the Equality Act 2010 did not prohibit acts of victimisation committed against a former employee. However, two months later in Onu v Akwiwu, it was held that post-employment victimisation was covered by the Equality Act. The issue was referred to the Court of Appeal who upheld the finding in Onu, drawing the conclusion that it was ‘an undoubted drafting error’ and ‘it is clear that the draftsman and Parliament intended to proscribe post-employment victimisation.’
The central issue arose from the drafting of section 108 of the Equality Act, which explicitly states that discrimination and harassment arising out of a previous relationship is unlawful but contains no equivalent provision regarding victimisation.
The Court of Appeal referred to the existing state of the law when the Equality Act was drafted. The Equality Act was intended to give effect to the requirements of a number of EU Directives, namely ‘the Race Directive’, ‘the Framework Directive’ and ‘the Recast Directive.’ Article 11 of the Framework Directive states in relation to victimisation that:
‘Member States shall introduce... such measures as are necessary to protect employees against dismissal or other adverse treatment by the employer as a reaction to a complaint within the undertaking or to any legal proceedings aimed at enforcing compliance with the principle of equal treatment.’
It was clear from the ECJ decision in Coote v Granada Hospitality that “the principle of effectiveness” meant employees claiming sex discrimination were protected against victimisation, whether during employment or post-termination. In Rhys-Harper v Relaxion Group plc and other cases , it was regarded by the House of Lords that there was no rational basis for withdrawing statutory protection against discrimination post-employment, including victimisation - most of the members of the House found it unnecessary to rely on the ECJ decision in Coote, as they reached their conclusions applying domestic principles of construction. Therefore even before the Equality Act came into force, post-termination victimisation was deemed unlawful and in any event, findings to the contrary would be a breach of the UK’s obligations under EU law.
The Court of Appeal also emphasised that the purpose of the Equality Act was not to change the law but to ‘re-state, with some clarifications and enhancements where necessary, existing protections against discrimination.’ Further, essentially there is no rational basis upon which to treat post-termination victimisation differently from post-termination discrimination and harassment.
The case was therefore remitted to the Tribunal for assessment of compensation.
Jessemey v Rowstock Ltd & Anr  EWCA Civ 185