Rowstock Ltd v Jessemey

The Court of Appeal held that the Equality Act 2010 does prohibit acts of victimisation committed against a former employee. The court construed the Act so as to give effect to the clear prior position of the law and the United Kingdom’s obligations under EU equality directives. Although the natural reading of Part 8, section 108, did not on its face proscribe post-termination victimisation, the apparent omission was treated as a drafting error which the court could correct by implication. The court relied on the Ghaidan purposive approach to statutory construction and, alternatively, on the principles for rectifying clear drafting mistakes (Inco). The claim of victimisation therefore succeeds and the matter is remitted to the Employment Tribunal for assessment of compensation.

Background and facts:

• The claimant was dismissed in January 2011 and later brought claims for unfair dismissal, age discrimination and victimisation after a former director allegedly gave a bad reference because the claimant had pursued tribunal proceedings. The Employment Tribunal (Reading) upheld the unfair dismissal and age discrimination claims and found that the bad reference was given because the claimant had pursued proceedings, but held that post-employment victimisation was not unlawful under the Equality Act 2010. The Employment Appeal Tribunal upheld that conclusion.

Nature of the claim:

• The appellant sought a declaration and remedy for victimisation contrary to the Equality Act 2010 arising from conduct after the employment had ended (a bad reference).

Issues framed by the court:

• Whether the Equality Act 2010 proscribes victimisation of a former employee;
• How to construe section 39(4) and section 108 of the Act in their statutory and EU context; and
• Whether a court may imply words or otherwise correct an apparent drafting omission to give effect to EU obligations and the evident legislative intention.

Court’s reasoning and conclusion:

• On a natural reading section 108 expressly proscribes post-termination discrimination and harassment but does not expressly proscribe victimisation; subsection (7) of section 108 is opaque and does not clearly indicate an intention to permit post-termination victimisation.
• Contextual materials — the prior authorities (notably Rhys-Harper), the 2003/2006 regulations dealing with relationships that have come to an end, the Explanatory Notes to the 2010 Act and the relevant EU Directives (including article 11 of the Framework Directive) — all point to the draftsman not having intended to withdraw protection for former employees.
• Applying the Ghaidan purposive approach to implementation of EU law, and alternatively the domestic principle permitting correction of plain drafting errors (Inco), the court concluded it was possible and appropriate to imply provisions so as to proscribe post-termination victimisation across the employment provisions. The appeal was allowed and the case remitted to the Tribunal to assess compensation for victimisation.

This is an appeal allowed. The Court of Appeal held that the Equality Act 2010 does proscribe victimisation of former employees. Although section 108 did not expressly include victimisation, contextual materials (legislative history, Explanatory Notes, EU Directive obligations and precedent) showed the omission to be a drafting error which the court could correct under the purposive Ghaidan approach and, alternatively, by rectifying construction (Inco). The victimisation claim therefore succeeds and the matter is remitted to the Employment Tribunal for assessment of compensation.

Appeal from the Employment Appeal Tribunal (UKEAT/0112/12/DM), which had upheld the Employment Tribunal (Reading, decision sent 7 December 2011) that rejected a claim of post-employment victimisation under the Equality Act 2010. The Court of Appeal allowed the present appeal and remitted the victimisation claim to the Tribunal for assessment of compensation. The related appeal Onu v Akwiwu was heard contemporaneously and considered in argument.