17 April 2014
Gone but not forgotten? How victimising ex-employees can still lead to claims
Employers should take care not to act in a way that victimises former employees who are bringing discrimination claims against them, following a recent ruling.
In the recent case of Jessemey v Rowstock Limited, an employee who was dismissed because he had reached the age of 65 claimed unfair dismissal and age discrimination. As a result, his former manager gave him a poor reference when he applied for a new job and the ex-employee therefore brought a victimisation claim. The issue was whether the law allows ex-employees to bring victimisation claims after their employment has ended.
There is victimisation in law when an employer subjects a worker to a detriment because he or she has made a claim of, for example, discrimination or harassment by the employer. Prior to the Equality Act 2010 (which came into force in 2011), ex-employees could bring claims for victimisation by their former employers that took place after they had left their jobs. However, under the new law it appeared that ex-employees could not claim for victimisation taking place after they had left.
In this case the court ruled the fact ex-employees were protected from victimisation before the new law came in meant Parliament must have intended that protection to continue after the new law was introduced. The court also took into account that EU law says ex-employees must be protected from victimisation. The courts must therefore interpret the new law so that the protection against victimisation by their former employer continued to apply even after an employee had left.
The ex-employee in this case could therefore bring a claim for victimisation that took place after he had left.
Chris Brazier at B P Collins recommends that employers should take care not to act in a way that victimises former employees, no matter how long after they have ceased to be employed, as it is now clear ex-employees can still bring claims for victimisation for events taking place after they have left.
"Such claims are most likely to arise because of references given by the former employer," said Chris Brazier. "Therefore, businesses should ensure they have clear policies, communicated to employees, governing the giving of references, which reduce the risk of such claims."