A claim for victimisation can be brought where an employee has
been subjected to a detriment as a result of bringing a
discrimination complaint.
Prior to the Equality Act 2010, discrimination legislation gave
former employees the right to bring claims for victimisation that
occurred after their employment ended. However, although the
Equality Act makes post-employment discrimination and harassment
unlawful, it specifically excludes post-employment acts of
victimisation (section 108 (7)). In the recent case of Taiwo v
Olaigbe, the employment tribunal judge held that this was a
drafting error, and that the Act should be interpreted to protect
former as well as current employees.
Ms Taiwo had worked as a live-in nanny/housekeeper under a migrant
worker visa until she left her employment, complaining of
racial abuse. During the course of subsequent tribunal proceedings,
her ex-employers sent the trial bundle to the United Kingdom Border
Agency, asking that they re-examine her immigration status. Ms
Taiwo then brought a claim for post-employment victimisation. The
employers argued that such claims are excluded by the Equality Act
2010.
The employment judge referred to the EHRC Code of Practice on
Employment and correspondence from the Government Equalities Act
office each of which seem to confirm that protection from
post-employment victimisation is maintained under the
Equality Act. He concluded that the current exclusion is a drafting
error and that words should be read into the Act in order to
clarify that victimisation claims relating to former employment are
covered.
This decision conflicts with a previous tribunal decision in
Jessemey v Rowstock Ltd, in which it was held that Mr Jessemey
could not proceed with a victimisation claim relating to an
unfavourable reference given by his former employer. However,
Taiwo v Olaigbe is more consistent with the intention behind the
legislation and previous case law, and is a common-sense decision.
An amendment to the Equality Act 2010 would nevertheless be welcome
in order to clarify the situation.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
