No Remedy For Post-Employment Victimisation

The Employment Appeal Tribunal has held in Rowstock Ltd v Jessemey UKEAT/0112/12 that the Equality Act 2010 (the ‘Act') does not provide a remedy for post-employment victimisation. The Act expressly deals with discrimination suffered post-termination but is subject to an exception for post-termination victimisation claims.  

Mr Jessemey was dismissed by Rowstock and brought a claim in the Employment Tribunal for unfair dismissal and age discrimination.  During his attempts to find new employment, he discovered that Rowstock had provided a reference to an employment agency that was so unfavourable that no employer would hire him. He then brought a further claim in the Tribunal for post-employment victimisation on the grounds that the unfavourable reference had been given because he had brought claims against Rowstock.  The Tribunal upheld Mr Jessemey's unfair dismissal and age discrimination claims but rejected his post-employment victimisation claim.  It accepted that the poor reference had been given because Mr Jessemey had brought proceedings against his employer, but because of the express exception in the Act, concluded that it could provide no remedy. 

Mr Jessemey appealed to the Employment Appeal Tribunal (EAT).  The EAT agreed with the Tribunal and held that it had no jurisdiction to award a remedy.  Any attempt to do so would amount to amending a primary statute.  It follows that currently, employees cannot succeed in such claims.  Note, however, that the EAT commented that it was highly unlikely that Parliament intended the Act to fail to provide redress in these circumstances and gave Mr Jessemey the right to take his claim to the Court of Appeal.  It seems unlikely that this lacuna in the law will remain for much longer, but we will report on any appeal that is made.