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This article first appeared in the April 2014 issue of the Employment Law Journal, published by Legalease (www.lawjournals.co.uk).
Since the introduction of the Equality Act 2010 (EqA), there has been considerable confusion and uncertainty as to whether the victimisation of former employees is unlawful or not.
Subjecting a former employee to a detriment because they had raised a discrimination complaint (victimisation) had been unlawful under previous legislation and Parliament had no apparent intention to change this position.
Nonetheless, the specific wording of the EqA appeared to remove the right to bring this claim.
This article explores the 'to and fro' in the tribunals and courts that has taken place in two particular claims: Jessemey v Rowstock and Onu v Akwiwu. These disputes have now been considered by the Court of Appeal, which has determined that there is a right to claim post-employment victimisation in the UK.
The most interesting element of this decision is that the Court has effectively re-written the law to say almost the exact opposite of a lay person's interpretation by concluding that the original drafting had to have been an error.
The EqA expressly deals with 'relationships that have ended' and protects former employees from direct and indirect discrimination and harassment.
However, the EqA also states that conduct will not be a contravention of the provisions protecting former employees in so far as it also amounts to victimisation of the individual by their former employer.
Therefore, on a literal reading, former employees are protected from post-termination discrimination and harassment, but are expressly excluded from protection against victimisation. This is despite the fact that:
The issue for the UK courts and tribunals, therefore, was how to interpret a provision of law that on its face says that a claim is not available, against a parliamentary intention and EU compliance obligation both suggesting that the claim should be available.
Not surprisingly, this difficulty has led to different and contradictory decisions.
Jessemey v Rowstock
Mr Jessemey was employed by Rowstock, a small car sales and repair business, prior to his employment being terminated because he was over 65. He brought claims for unfair dismissal and age discrimination in the Employment Tribunal.
He registered with an employment agency, but the agency received a poor employment reference from a director of Rowstock.
Mr Jessemey then submitted a further claim for victimisation, alleging that the reason for the poor reference was that he had brought a claim.
The Tribunal agreed with Mr Jessemey, but went on to hold that it had no jurisdiction to give him any remedy for victimisation because the EqA did not make post-employment victimisation unlawful.
Onu v Akwiwu
Ms Onu was a Nigerian migrant domestic worker. She alleged that she had been poorly treated by Mr and Mrs Akwiwu and left her employment making various claims, including unfair dismissal and race discrimination.
Six months later, Mr Akwiwu telephoned Ms Onu's sister and, having referred to Ms Onu's claim, threatened that she 'would suffer for it'. Ms Onu then claimed victimisation under the EqA.
Unfortunately, the Tribunal did not consider whether a post-employment victimisation claim could succeed on the legislation because it felt that it was not clear from the facts that the threat was made because Ms Onu had made discrimination claims (rather than her other claims).
The Tribunal considered that Mr Akwiwu would have needed to refer to the EqA or discrimination in order for his threat to be victimisation.
Both Mr Jessemey and Ms Onu appealed to the Employment Appeals Tribunal (EAT) on the post-employment victimisation point, among others.
When considering Jessemey, the EAT considered both UK and EU law and, in particular, whether there was any way that it could interpret the post-employment victimisation provisions in the EqA to give effect to the EU provisions.
The EAT referred to its duty to take a 'flexible interpretive approach' to domestic legislation that is intended to implement EU law. However, it clearly felt that there were limits to how far it could stretch such an approach, commenting that:
"The instant situation is one in which express provision has been made for the post-relationship landscape but subject to an equally express exception in the case of victimisation. In such a situation no judicial tool is available to make available a remedy which the words used by Parliament have simply stated shall not be available."
In other words, where the law specifically says that there is no protection for post-employment victimisation (rather than just being silent or ambiguous on the point), the EAT could not interpret the provision to mean the opposite.
Mr Jessemey therefore failed in his post-employment victimisation claim.
Despite this earlier decision, the EAT reached the opposite view when it considered Ms Onu's claim. It considered that 'applying domestic canons of construction' enabled it to interpret 'employee' as also encompassing a 'former employee' in order to give effect to EU law.
The EAT also sensibly reversed the Tribunal's conclusion that the reason for the threat was not sufficiently linked to the discrimination claims. Consequently, the EAT concluded that Ms Onu had been unlawfully victimised following the termination of her employment.
With the EAT taking two opposing views, the Court of Appeal was left to find a way through the uncertainty and consider whether (and how) it could interpret the EqA in line with EU law. The Court heard both cases together, although judgment in each was handed down at different times.
The Court undertook a detailed review of the legislative history, the EU directives and related case law. Also fundamental to the decision was its view that, at the time the EqA was drafted, post-employment discrimination, including victimisation, was clearly unlawful.
There were also no statements from the government that it intended to change the law in this regard. This heavily influenced the Court's view that, whatever the post-employment provisions actually say, Parliament cannot have intended them to be interpreted as preventing remedies for victimisation claims.
The Court was not able or willing to explain away the drafting of the provisions and instead concluded that the wording is a 'plain case of a drafting mistake'.
There are some quite amusing comments in Jessemey by Underhill LJ, who noted there was an impression that 'the draftsman may rather have lost his way'.
He was minded to echo Lord Russell in an earlier case and say, 'this beats me' and jettison the relevant provisions 'as making no contribution to the manifest intention of Parliament'.
He firmly stated that, despite what they may appear to say, the post-employment provisions:
"...can have no meaning which is inconsistent with post-termination victimisation being unlawful."
The Court therefore suggested amending the provisions or adding a new provision to clarify the issue.
So how did this all this work out for Mr Jessemey and Ms Onu?
The court determined that Mr Jessemey succeeded on his victimisation claim and upheld the EAT's decision that Ms Onu had suffered victimisation.
The cases serve as a reminder of the lengths to which the courts can and will go to make domestic legislation compliant with EU directives. Here, the Court of Appeal effectively had to say the legislation is wrong and completely re-write it to give it the opposite meaning.
Notwithstanding that it is Parliament's role to enact law and the judiciary's to enforce it, it appears that the judiciary is not above saying that Parliament's draftsperson simply got it wrong. This adds fuel to the ongoing debate about the extent to which the judiciary should, as a matter of function, do this or whether it should leave it to Parliament to amend the law.
Arguably, the Court's decision in these cases goes one step further than other examples of judicial intervention in employment law in recent years.
A notable example is where whole sentences were added to the prohibition in the Working Time Regulations 1998 against carrying over untaken holiday to allow such carry over where the employee has been sick.
The key difference with these Regulations was that the European position had developed over time, which the original UK drafting could not have been expected to take into account.
The re-writing of the law in this way can also cause confusion to people who are trying to comply with the law, who cannot reasonably be expected to understand that a particular provision means the opposite of what it says 'on the tin'.
The change in interpretation also means that people who previously thought they were acting within the law may now find themselves in breach. One would hope that, given how long these cases have been progressing through the system and the relatively short limitation periods for Tribunal claims, there will not be too many people in this position.
The practical application of these cases for employers is, as it so often is, 'be careful'. Employers need to be mindful that they have obligations to people who are not their employees, including job applicants and former employees, as well as workers, agency workers and contractors.
Employers should be particularly careful when providing written and verbal references for former employees. Such references should not be clouded by any reference to unfair dismissal or discrimination complaints, written grievances or actual or potential tribunal claims.
References are definitely a case where less is (usually) more.
Employers will be better protected by keeping references brief and factual and, subject to regulatory requirements, simply confirming dates of employment and the position held.
This article was written by Kirsti Laird and Clare Davis.
For more information, please contact Kirsti on +44 (0)20 7427 6411 or email@example.com