Jessemey v Rowstock Ltd & Anor

Factual and Procedural Background

The appeal concerns whether the Equality Act 2010 prohibits acts of victimisation committed against a former employee. The Claimant was employed by Company A, a small car sales and repair business in The City. The Claimant was dismissed in January 2011 on the ground of age (over 65) and brought claims for unfair dismissal and age discrimination. After dismissal, the Claimant sought new employment through an agency, but a director of Company A gave a poor reference, which the Claimant alleged was victimisation contrary to the Equality Act 2010.

An Employment Tribunal (ET) upheld the unfair dismissal and age discrimination claims and awarded compensation. It found the bad reference was given because the Claimant was pursuing tribunal proceedings but held that "post-employment victimisation" was not unlawful under the 2010 Act. The Employment Appeal Tribunal (EAT) agreed with this conclusion. This appeal challenges that interpretation.

Legal Issues Presented

1. Does the Equality Act 2010 prohibit victimisation of former employees?
2. How should section 108 of the Equality Act 2010, which deals with relationships that have ended, be interpreted in relation to victimisation?
3. What is the proper approach to correcting a drafting error in the Equality Act 2010 concerning post-termination victimisation?
4. How should EU law obligations influence the interpretation of the Equality Act 2010 regarding post-employment victimisation?

Arguments of the Parties

Appellant's Arguments

• Post-termination victimisation is unlawful and the Equality Act 2010 should be interpreted or corrected to reflect this.
• The omission of explicit prohibition of post-termination victimisation in section 108 is a drafting error that should be rectified.
• EU law requires protection against victimisation after employment ends, and the Act must be construed compatibly with these obligations.
• Section 108(7) should be understood as preventing double recovery rather than permitting lawful victimisation.
• Fallback submission: If the Court does not accept the EU law-based interpretation, it should apply a domestic rectifying construction similar to that in Inco Europe v First Choice Distribution.

Respondents' Arguments

• The text of the Equality Act 2010, particularly section 108(7), clearly excludes post-termination victimisation from being unlawful.
• The Court lacks power to imply provisions that would amount to judicial legislation or cross the "Rubicon".
• The interpretative tools are insufficient to provide a remedy for post-termination victimisation under the current statutory framework.
• The legislative changes since Rhys-Harper support the conclusion that post-termination victimisation is not covered by the 2010 Act.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court began by acknowledging that on a natural reading, the Equality Act 2010 does not explicitly proscribe post-termination victimisation. Section 108 explicitly prohibits discrimination and harassment arising from ended relationships but omits victimisation, with section 108(7) stating that conduct is not a contravention of that section if it also amounts to victimisation.

However, the Court found this omission to be a clear drafting error, inconsistent with the legislative history, the purpose of the Act, and the UK's obligations under EU law. Prior legislation and case law, including Rhys-Harper and Coote, established that post-employment victimisation was unlawful. The Court noted that the 2010 Act was intended to restate and enhance existing protections, not reduce them.

The Court applied the "Ghaidan approach," which allows courts to imply words into legislation to ensure compliance with EU law obligations, even if that departs from the natural meaning. It concluded that it is possible and appropriate to imply into section 108 a prohibition of victimisation arising out of ended relationships, consistent with the Act's purpose and EU law.

Regarding section 108(7), the Court found its wording opaque and concluded it was intended to avoid double recovery where conduct overlaps discrimination, harassment, and victimisation claims, rather than to permit victimisation post-termination.

The Court also considered a purely domestic approach based on the House of Lords' decision in Inco Europe v First Choice Distribution, which permits correction of plain drafting errors by reading in words reflecting legislative intention. It found that the conditions for such a correction were met here.

Ultimately, the Court held that both the EU law-based interpretative approach and the domestic rectifying construction lead to the conclusion that post-termination victimisation is prohibited by the Equality Act 2010, despite the omission in section 108.

Holding and Implications

The Court ALLOWED THE APPEAL, holding that the Equality Act 2010 does prohibit acts of victimisation committed against former employees.

The direct effect is that the Claimant's victimisation claim must succeed, and the case is to be remitted to the Employment Tribunal for assessment of compensation. No new precedent was set beyond clarifying the interpretation of the Equality Act 2010 in line with existing EU law obligations and prior case law. The decision confirms that post-termination victimisation is unlawful and remedies are available under the Act despite the apparent drafting omission.