There has been an ongoing debate as to whether post-employment victimisation is unlawful under the Equality Act 2010. In Onu v Akwiwu the EAT has held that it is indeed unlawful, departing from its decision in Rowstock Ltd v Jessemey earlier this year (which is being appealed to the Court of Appeal).
The claimant in the Onu case was a migrant domestic worker who left her employment and claimed race discrimination. Her ex-employer then rang her sister in Nigeria and said Ms Onu had made claims against him and "would suffer for it". Ms Onu made a further claim of victimisation.
The EAT recognised that the Equality Act 2010 does not expressly provide that victimisation of a former employee is unlawful. Post-termination discrimination and harassment are specifically covered by section 108 of the Act. There is no such protection for post-termination victimisation. But in EAT's opinion section 108(7), though rather difficult to interpret, seems to assume that post-termination victimisation is actionable.
The EAT said its conclusion was supported by the obligations under European law to protect workers from discrimination after employment has ended. The EAT was also mindful of case law suggesting that domestic courts should try and interpret domestic provisions in a way that is compatible with EU law. Accordingly, EAT felt that the decision in Rowstock Ltd v Jessemey was wrong and that the Equality Act 2010 did cover post-employment victimisation.
As the EAT appreciated that this left two conflicting decisions on the same issue it gave permission to appeal to the Court of Appeal in this case.
Action points
Until the Court of Appeal considers the issue, the safest course of action is to assume that post-employment victimisation is unlawful and proceed on that basis in dealings with ex-employees, including, for example, the giving of references. It would also be possible for the Government to intervene to clarify the situation but it has not yet indicated that it is minded to do so.
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