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post-termination victimisation confirmed as unlawful

28 February 2014

The Court of Appeal has held that post-termination victimisation is unlawful under the Equality Act 2010 in Jessemy v Rowstock Ltd. Mr Jessemy had brought tribunal proceedings including age discrimination. The employment tribunal found that Rowstock Ltd had provided a detrimental employment reference as a result of Mr Jessemy pursuing the tribunal proceedings but was unable to provide a remedy due to the wording of the Equality Act.

Strangely, s108(7) of the Act appeared to expressly exclude post-employment victimisation, despite such protection being required by EU law. The protection had already been established by case law and there was no indication that there was an intention to change that under the Equality Act.

The Court of Appeal held that the Act contains a drafting error; that the claim must succeed and remitted the case back to the tribunal to assess compensation.

Employers should be mindful of the risks when supplying references for employees who have issued discrimination proceedings against them.

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