Rowstock Ltd v Jessemey

Section 108(7) of the Equality Act 2010 expressly excludes post-relationship victimisation from the statutory remedy. A court cannot reverse that exclusion by interpretation, even where the result creates a lacuna in protection required by European Union law.

The Polkey principle applies to compensation for automatically unfair dismissal and unlawful discrimination. The tribunal must consider whether the employee would probably have been dismissed lawfully if the required procedure had been followed. Its reasoning must focus on that counterfactual question and the significance of the actual dismissal.

Mr Jessemey was dismissed by Rowstock Ltd on grounds of retirement after reaching 65. The Employment Tribunal found unfair dismissal and age discrimination, but made no Polkey reduction in compensation. It also found that a poor post-employment reference had been given because Mr Jessemey had brought proceedings, but held that Equality Act 2010, section 108(7), provided no remedy for post-employment victimisation.

Rowstock appealed against the compensation award. Mr Jessemey cross-appealed against the refusal of his victimisation claim. The central issues were whether section 108(7) could be interpreted to provide a remedy and whether the tribunal had adequately addressed the likelihood of a lawful later dismissal.

1. Post-employment victimisation. The cross-appeal was dismissed. Section 108 extends specified prohibitions into relationships which have ended, but subsection (7) expressly provides that conduct amounting to victimisation is not a contravention of the section. The literal wording creates a lacuna in the statutory scheme and is likely inconsistent with applicable European Union requirements, but that does not authorise the Tribunal to create a cause of action which Parliament has expressly excluded (paras [29]-[40]).

2. The proposed interpretation would require the subsection to mean the opposite of its enacted wording. It would also require wider consequential amendments throughout the statutory scheme, including provisions concerning former employers, contract workers and partners. That would cross the constitutional boundary identified in Ghaidan v Godin-Mendoza, rather than constitute legitimate interpretation (paras [34]-[39]).

3. Polkey compensation. The employer’s appeal was allowed. The principle applies where dismissal is automatically unfair or discriminatory. The tribunal therefore had to consider whether, had the statutory retirement procedure been followed, Mr Jessemey would probably have been fairly dismissed approximately six months later, and limit compensation accordingly if appropriate (paras [41]-[47]).

4. The tribunal’s reasoning focused on competing accounts of pre-dismissal conversations and did not adequately address the significance of the actual dismissal, which had occurred even earlier than the law permitted a fair retirement dismissal. The proper inquiry was whether a dismissal would probably have followed had the required procedures been applied. The assessment of compensation was remitted to the same tribunal, if practicably capable of being reassembled (paras [48]-[52]).

• Employment Appeal Tribunal: allowed Rowstock Ltd and Mr Davis’s appeal on compensation, dismissed Mr Jessemey’s cross-appeal on post-employment victimisation, and remitted compensation for redetermination by the same Employment Tribunal.