Post-termination victimisation unlawful, court rules

The Court of Appeal has ruled that post-termination victimisation is unlawful under the Equality Act 2010.

Victimisation is where an employee has carried out a “protected act”, such as bringing a tribunal claim, and is treated less favourably because they have taken that action.

The case of Jessemey v Rowstock Ltd & Another involved a man who had been employed by Rowstock Ltd, an Oxfordshire car sales and repair business.

The employee was dismissed in January 2011 on the grounds that he was over 65. He then brought proceedings for unfair dismissal and age discrimination.

In his search for another job, he went to an employment agency, which was given what was described as “a very poor reference” by a director of Rowstock. The claimant believed this was because of the proceedings he had initiated and he made a further claim of victimisation under the Equality Act 2010.

A 2011 employment tribunal awarded him £24,682.73 after upholding the claims for unfair dismissal and age discrimination. It also found that the proceedings that he had brought were the reason for the bad reference.

Notwithstanding that finding, the tribunal ruled that post-employment victimisation was not unlawful under the 2010 Act and the Employment Appeal Tribunal subsequently agreed.

However, in a ruling issued on 26 February, Lord Justice Underhill in the Court of Appeal said that it was clear that that both the draftsman of the 2011 Act and Parliament had “intended to proscribe post-termination victimisation and that the failure explicitly to do so was inadvertent”.

In a decision supported by Lord Justice Ryder and Lord Justice Maurice Kay, he said that the victimisation claim must succeed and the case should go back to the employment tribunal for compensation to be assessed.

Providing references can be a confusing issue for employers, particularly if the relationship with their ex-employee was a difficult one or had broken down. While employers do not have to give a reference unless they have agreed to, if they do provide a reference it can be brief but should be fair and accurate and not influenced by any unfair dismissal or discrimination issues that may have arisen.

Palmers can provide expert advice on all aspects of employment law, including providing references. Our services also include provision of a white-branded HR package, which contains guidance, policies, sample documents, such as employment contracts, and other information for employers.

For more information, please visit our website or contact Lara Murray, Karl Barnes or Charlotte Woolven-Brown.