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Victimisation after end of employment

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[Thanks to Daniel Tivadar of 3 Hare Court for preparing this case summary]

Can a claim be brought for post-employment victimisation under the Equality Act 2010? 

Yes, says the EAT (Langstaff P) in Onu v Akwiku, disagreeing with the decision in Rowstock Ltd v Jessemy handed down by the EAT less than two months ago. 

The Claimant was a domestic servant who brought a claim against her previous employers for, amongst other things, victimisation after she had left employment. The Employment Tribunal held that victimisation was not made out on the facts. The Claimant appealed. The Respondent raised the new argument that post-employment victimisation claims were precluded by virtue of s. 108(7) of the Equality Act. 

The EAT held that construction of the Act was to be approached in two stages: first, the meaning of the Act was to be ascertained as if it was a purely domestic statute. If the result of the "domestic construction"? was contrary to the requirements of the Equal Treatment Directive, then the second stage was to consider whether the Act could be interpreted in accordance with the UK's obligations under the Directive. 

The EAT considered that the "domestic construction" of the Equality Act permitted employees to bring claims for acts of victimisation that took place after their employment had ended. It thought that the contrary decision of Rowstock Ltd v Jessemy had been wrongly decided. Although this meant that the second stage of construction was not reached, the EAT nonetheless recorded that the Directive further strengthened its conclusions. 

As there are now two inconsistent EAT decisions, permission to appeal to the Court of Appeal was granted (as well as in the linked appeal of Taiwo v Olaigbe).