Employers should be wary of ‘post employment’ victimisation says EHRC

Employers who give poor references to former employees because they have been involved in a complaint of discrimination will be liable to pay compensation, the Court of Appeal ruled today (26th February 2014) .  The ruling has been welcomed by   the Equality and Human Rights Commission.  The Court heard that Mr Pat Jessemey had been dismissed from his job at Rowstock Ltd, a car sales and repair business in Didcot, Oxfordshire because he was aged over 65.

Mr Jessemey, a car body repairer, brought proceedings for unfair dismissal and age discrimination and went to an employment agency for help in getting another position. However, a director from his former firm gave him a bad reference because he had made a complaint of discrimination and Mr Jessemey launched another claim alleging victimisation contrary to the Equality Act 2010.

An Employment Tribunal upheld the claims of age discrimination and unfair dismissal and awarded him nearly £25,000 in compensation, but said that ‘post-employment victimisation’ was not prohibited by the Equality Act 2010, although it accepted this was the reason for the poor reference. An Employment Appeal Tribunal reached the same conclusion.

The Commission argued that this was an incorrect interpretation of equality law and was not compatible with European Union legislation which prohibits post employment victimisation.

The Court concluded that it is clear that the draftsman and Parliament intended to proscribe post relationship victimisation and that the failure to do so explicitly was a mistake. The claim will now return to the Employment Tribunal for the assessment of compensation.

Commission legal director, Wendy Hewitt said, “We supported this case in order to clarify an important principle of law namely that the Equality Act 2010 should be read as prohibiting victimisation which happens after someone has left their job and is then treated unfavourably because they have made allegations of discrimination.

“The fact that this claim has been successful means that it is clear that this protection also applies to former relationships in education, services, public functions and associations."

About The Equality and Human Rights Commission (EHRC)

The Equality and Human Rights Commission is a statutory body established under the Equality Act 2006. It took over the responsibilities of Commission for Racial Equality, Disability Rights Commission and Equal Opportunities Commission.  It is the independent advocate for equality and human rights in Britain.  It aims to reduce inequality, eliminate discrimination, strengthen good relations between people, and promote and protect human rights.  The Commission enforces equality legislation on age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, sexual orientation. It encourages compliance with the Human Rights Act and is recognised by the UN as an ‘A status’ National Human Rights Institute.  It also gives advice and guidance to businesses, the voluntary and public sectors, and to individuals.