• Robert Spicer

Age Discrimination: Post-Termination Victimisation

Post-termination victimisation

Case Rowstock Ltd v Jessemy [2014] EWCA Civ 185

Facts J was employed as a car body repairer. He was dismissed shortly before his 66thbirthday. He was told that the company did not employ manual workers over the age of 65 for health and safety and quality reasons. The employer did not follow the statutory retirement procedure. The employer gave J a poor reference.

J complained of age discrimination and victimisation. The tribunal ruled that because of section 108(7) of the Equality Act 2010, post-employment victimisation is not unlawful. It found that there had been unlawful age discrimination.

Remedies

Financial loss: Actual loss: £11, 347. Future loss: 6 months: £5,244. 10% uplift

Injury to feelings: £3000: lower Vento band: act of omission rather than commission.

On appeal to the EAT by J, the appeal was dismissed. The Equality Act does not allow a claim for victimisation which arises from acts committed after the employment has ended.

J appealed further to the Court of Appeal.

Decision 1. The appeal was allowed.

2. The apparent failure of the statute to proscribe post-termination victimisation was a drafting error.

3. Given the existence of an EU obligation to proscribe post-termination victimisation, the question was whether it was possible to imply words into the Equality Act 2010 which achieved that result. It plainly was.

4. The case would be remitted to the ET for assessment of compensation.

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