Post termination victimisation ruled unlawful and proscribed by the Equality Act 2010
The Court of Appeal in England and Wales has now confirmed that former employees are capable of claiming victimisation as a result of lodging discrimination proceedings against their previous employer. In the case Jessmemy –v- Rowstock Limited & Mr Davis EWCA 2013 it was determined that the Employer who provided a poor reference on behalf of their former employee to an employment agency because they had been involved in a complaint of discrimination previously was liable to pay compensation.
Rowstock Limited, the first named Respondent in the proceedings, sells and maintains Nissan motorcars. Mr Jessmemy, the Claimant in the proceedings was employed by the company as a car body repairer. His employment began on 5 March 2008 and he reached the age of 65 on 17 January 2010. A year later, on 10 January 2011, a Director of the company – Mr Davis – told him that the company did not wish to employ men over 65. Mr Jessmemy was subsequently given two weeks notice of termination of his employment. The company did not require him to work his notice and he was paid two weeks in lieu and did not return to the work place.
On 8 February 2011 the company gave a very poor reference about Mr Jessmemy to an employment agency. On 5 March 2013 the Employment Appeal Tribunal held that the courts were incapable to order compensation to Mr Jessmemy in respect of the poor reference forwarded by Rowstock Ltd to the employment agency, as the courts had no statutory provision to do so. Despite the Employment Tribunal Appeal finding, as a matter of fact, that the reference was forwarded on the grounds of Mr Jessmemy taking discrimination proceedings previously against Rowstock Ltd, the Employment Appeal Tribunal decided it had no jurisdiction to give any remedy for this act because of the terms of the Equality Act 2010, specifically section 108 (11).
Mr Jessmemy brought this matter to the Court of Appeal to determine whether in such circumstances the Equality Act 2010 permits a former employee to claim compensation for post employment victimisation as a result of taking discrimination proceedings previously.
The Court of Appeal has now stated within its judgement that
“On a natural reading of the relevant provisions... Post termination victimisation is not proscribed... once the proper contextual materials are considered it seems equally clear that it is not the result which the draftsman intended.” (Paras. 28 & 29)
The Judgement went on to state that this error within the Equality Act could be corrected by the Courts, both by reference to EU law and under principles of interpretation of domestic law, which applied where there was an obvious drafting error. Accordingly the Judgement concluded that “Post termination victimisation is proscribed by the 2010 Act”.
The claim will now return to the Employment Tribunal for the assessment of compensation with specific regards to injury to feelings Mr Jessmemy suffered as a result of the Car Sales Business forwarding the poor reference.
Whilst the Equality Act 2010 is not applicable to the Northern Irish jurisdiction, this finding of the Court of Appeal in England and Wales will be highly persuasive in any Northern Irish case pursued on similar facts and grounds. Employers should therefore be careful in such circumstances when a former employee is or has taken discrimination proceedings against them.
This article was written by Niall McMullan, Associate Partner in Worthingtons Solicitors.