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post termination victimisation

7 March 2013

Rowstock Ltd v Jessemey is the most recent case in a line of authorities to consider the Equality Act and claims of post termination victimisation.

Following a Tribunal claim for unfair dismissal and age discrimination, the claimant’s employer provided him with an unfavourable reference. Unsurprisingly he sought to bring a claim for victimisation. Both the Tribunal and the Employment Appeal Tribunal (EAT) agreed with the respondent that s.108(7) Equality Act 2010 specifically excludes a claim of victimisation in circumstances where the employment relationship has ended and therefore the claim must fail. This is not compatible with the Equal Treatment Directive but the EAT felt it was outside their remit to construe the subsection in a manner that was directly opposite to that which had been expressed in the Act.

Permission to appeal has been granted but it is likely that an amendment to the Equality Act will be required to rectify this anomaly.

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