, , , , ,

The issue raised at the Court of Appeal in Jessemey v Rowstock Ltd & Anor is whether the Equality Act 2010 (yes I know but relevant today) prohibits acts of victimisation committed against a former employee?

On 5 March 2013 the Employment Appeal Tribunal held that it does not; but in a case decided two months later, Onu  v Akwiwu, held that it does. The decisions are reported at [2013] ICR 807 and [2013] ICR 1039.

The issue is of practical importance because claims by former employees that their employer has acted to their prejudice following the termination of the employment – typically, though by no means only, by giving a bad (or no) reference – are not at all uncommon.

Appeals in both cases were listed before the CA on the same occasion, but there remain a separate substantive judgment in Onu since that case raises other issues in addition.

Another case os relevance is one heard in the European Court of Justice (ECJ),  Coote  v  Granada Hospitality  Ltd where the ECJ decided a reference from the UK based EAT in a case of the alleged victimisation of a former employee who had brought a claim of sex discrimination. Discrimination on grounds of sex was proscribed under the Equal Treatment Directive (76/307/EEC); but the Directive did not refer expressly to victimisation (save in the form of dismissal). The Court held that member states were required to ensure that employees making claims of sex discrimination were protected against being victimised on that account. More pertinently for present purposes, it held that that was the case whether the victimisation occurred during employment or subsequently. At para. 25 of the judgment (p. 113) it said:

“… [I]t is not possible to accept the United Kingdom Government’s argument that measures taken by an employer against an employee as a reaction to legal proceedings brought to enforce compliance with the principle of equal treatment do not fall within the scope of the Directive if they are taken after the employment relationship has ended.”

When the case returned to the EAT (see [1999] ICR 942) it was held that was possible to construe the phrase “in the case of a woman employed by him” as covering the case of a former employee.

The Facts

The Claimant was employed by the First Respondent,  Rowstock Ltd , which was a small car sales and repair business in Didcot in Oxfordshire; the Second Respondent, Mr Davis, was a director of   Rowstock   and appears in practice to have run the business. In January 2011 the Claimant was dismissed on the ground that he was aged over 65. He brought proceedings for unfair dismissal and age discrimination. He sought the help of an employment agency to find another job. When they approached Mr Davis he gave the Claimant a very poor reference. The Claimant believed that the reason for that reference was that he had brought proceedings, and he presented a further claim alleging victimisation contrary to the [older] Equality Act 2010.

By a decision sent to the parties on 7 December 2011 an Employment Tribunal sitting at Reading, chaired by Employment Judge Hardwick, upheld the claims of unfair dismissal and age discrimination and awarded the Claimant compensation totalling (together with some smaller ancillary awards) £24,682.73. As regards the victimisation claim it found that the reason for the bad reference was that “the Claimant was pursuing Employment Tribunal proceedings”. However, it held that “post-employment victimisation” was not unlawful under the 2010 Act. The EAT, as I have said, reached the same conclusion.

Application of EU law

The 2010 Act is intended to give effect in UK law to the requirements of a number of EU Directives:

(a) Council Directive 2000/43/EC (“the Race Directive”), which is the first EU directive addressing race discrimination;

(b) Council Directive 2000/78/EC (“the Framework Directive”), which is likewise the first directive addressing discrimination on the grounds of religion or belief, disability, age or sexual orientation; and

(c) Directive 2006/54/EC of the European Parliament and the Council (“the Recast Directive” – so called because it consolidates and updates previous directives), which deals with discrimination on grounds of sex.

The issue

Owing to a drafting error the provisions prohibiting victimisation are omitted from UK law and for other reasons are not identically worded in the three Directives, but the three Directives are broadly similar.  Further it is not suggested that any difference between them is material for present purposes. Since the underlying claim in this case was one of age discrimination, the Court of Appeal took article 11 of the Framework Directive as standing for all. It reads:

“Victimisation. Member States shall introduce into their national legal systems 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.”

In his Judgement Lord Justcie Kay says “It is clear from the decision of the ECJ in judgements Coote and Rhys-Harperthat that provision must apply equally to acts done after as well as during the currency of the employment relationship: see para. 8 above.”

In Lord Justice Kay’s view post-termination victimisation is proscribed by the 2010 Act.  The other Justices agreed which means that Mr Davis gave the reference that he did because the Claimant was pursuing tribunal proceedings and that the victimisation claim must succeed.  The case was remitted to the Tribunal for the assessment of compensation.

Citation:  Jessemey v Rowstock Ltd & Anor [2014] EWCA Civ 185 (26 February 2014)

Related citations:

Coote  v  Granada Hospitality  Ltd . (C-185/97) [1998] ECR I-5199[1999] ICR 100

Rhys-Harper  v  Relaxion Group plc [2003] ICR 867.

House of Lords in Ghaidan  v  Godin-Mendoza [2004] 2 AC 557

EBR Attridge LLP  v  Coleman [2010] ICR 242

A thank you

I thank The Incorporated Council of Law Reporting for bringing this case to my attention.