Jessemey v Rowstock Ltd & Anor

The Equality Act 2010 prohibits victimisation arising out of a former employment relationship. Although the Act’s natural reading omits an express prohibition, the omission was an inadvertent drafting error. The prohibition may be supplied both through the interpretative obligation applicable to legislation implementing EU law and through ordinary domestic principles for correcting an evident drafting mistake.

A rectifying construction is permissible where the court is abundantly sure of the provision’s intended purpose, that the draftsman and Parliament inadvertently failed to give effect to it, and the substance of the provision Parliament would have enacted. The construction must remain interpretative and must accord with the legislation’s fundamental features.

The appellant was dismissed by Rowstock Ltd because of his age and brought unfair dismissal and age discrimination proceedings. A director subsequently supplied a poor employment reference because the appellant was pursuing those proceedings. The Employment Tribunal upheld the original claims and found the reason for the reference, but held that post-employment victimisation was not unlawful under the Equality Act 2010.

The Employment Appeal Tribunal agreed, in a decision reported at [2013] ICR 807. It considered that supplying the omitted prohibition would exceed the permissible limits of statutory interpretation. A differently constituted Employment Appeal Tribunal subsequently reached the opposite conclusion in Onu v Akwiwu [2013] ICR 1039.

The central issue was whether the 2010 Act prohibits victimisation committed against a former employee.

1. Appeal allowed. Post-termination victimisation is prohibited by the Equality Act 2010. The victimisation claim therefore succeeded and was remitted to the Employment Tribunal for assessment of compensation.

2. On the natural reading of the Act alone, post-termination victimisation was omitted. Section 108 expressly addressed discrimination and harassment arising from ended relationships, but contained no equivalent operative prohibition for victimisation. Section 108(7) did not cure that omission and its intended operation was opaque.

3. The statutory and legal context established that the omission was an inadvertent drafting error. Post-employment victimisation had already been unlawful under the predecessor legislation as interpreted in Rhys-Harper v Relaxion Group plc [2003] ICR 867. There was no indication that Parliament intended to withdraw that established protection, and no rational basis for treating victimisation differently from discrimination or harassment. The Explanatory Notes also proceeded on the basis that post-termination victimisation would be addressed by the Act’s victimisation provisions. Its omission would additionally have placed the United Kingdom in breach of its EU obligations.

4. Because the relevant employment provisions implemented EU obligations, the court applied the interpretative approach explained in Ghaidan v Godin-Mendoza [2004] 2 AC 557. That approach permits departure from the natural reading and the implication of words where the resulting meaning accords with the legislation’s grain, remains compatible with its fundamental features and does not require decisions beyond judicial competence. Supplying the omitted prohibition met those requirements and implemented the draftsman’s actual intention.

5. The same result followed under domestic principles. Under Inco Europe v First Choice Distribution [2000] 1 WLR 586, words may be supplied to correct a plain drafting mistake where the court is abundantly sure of the intended purpose, the inadvertent failure to give effect to it, and the substance of the omitted provision. All three conditions were satisfied.

6. Underhill LJ gave the judgment. Ryder LJ and Maurice Kay LJ agreed.

1. Court of Appeal (Civil Division): Allowed the appeal. It held that post-termination victimisation is prohibited by the Equality Act 2010 and remitted the claim for assessment of compensation: [2014] EWCA Civ 185.
2. Employment Appeal Tribunal: Dismissed the appeal, holding that the Act did not prohibit post-termination victimisation: [2013] ICR 807.
3. Employment Tribunal: Found that the poor reference was given because the claimant was pursuing tribunal proceedings, but dismissed the victimisation claim on the basis that the Act supplied no remedy for post-employment victimisation.