EMPLOYERS BE WARNED: WHEN EMPLOYMENT ENDS,
SummaryMany employers may think that once an employee leaves their employment, they are not liable for any further acts of discrimination; however, think again.
Many employers may think that once an employee leaves their employment, they are not liable for any further acts of discrimination; however, think again. If an employee (or ex-employee) brings a claim or raises a grievance alleging discrimination, and their ex-employer treats them less favourably as a result, they could face a separate claim for “victimisation”. The same is also true where an employer treats a witness or a “companion” employee less favourably. The issue of victimisation post-employment was highlighted in the recent case of Taiwo v Olaigbe and others where the employment tribunal was asked to consider whether post-employment acts of victimisation could be brought under the new Equality Act 2010 ("EA 2010").
T was employed as a live-in nanny/housekeeper working under a migrant worker visa. After leaving her employment she brought a race discrimination claim alleging ill treatment and abuse by her former employers. They in turn contacted the UK Border Agency requesting that they investigate T’s immigration status. As a result, T brought a second employment tribunal claim alleging race discrimination, harassment and victimisation, relating to these post employment acts.
Is the Post-Employment Relationship covered under the EA 2010?
An issue arose over whether victimisation as a result of post-employment acts were covered under the EA 2010. The employers argued that the EA 2010 expressly excluded post-employment relationships. Although the employment tribunal agreed that the current incarnation of discrimination legislation excluded such claims, ex-employees were protected against victimisation under the pre-EA 2010 legislation, and, the old legislation (Race Relations Act 1976 etc) had been amended to comply with European law which did give protection for post-employment acts of victimisation. Rather than seek to distance the EA 2010 from previous legislation, the employment tribunal concluded that the EA 2010 should maintain these specific protections for post-employment acts.
EA 2010 – an “error”
The employment tribunal took the bold step in asserting that the offending provisions under the EA 2010 which sought to exclude post-employment victimisation were an “error” and instead gave the legislation a purposeful approach in line with European law. What does this mean for employers?
- Remember that once someone raises an allegation of discrimination, the employer cannot treat them less favourably as a result – victimisation may be referred to as “retaliation”;
- This exclusion also applies to those who have assisted an employee at a grievance meeting;
- Less favourable treatment may occur in employment or after termination;
- Be careful how you communicate that a person has brought a claim or left an organisation – both an employer and an individual manager/employee may be liable for acts of discrimination;
- It is important to have specific channels within an organisation as to who provides a reference or deals with any questions from new employers – agree a reference, keep it factual and do not deviate into irrelevancies.
The Ministry of Justice published its report on employment tribunals and EAT statistics for April 2011 to March 2012. This provides full details of the number of claims raised during this period, the types of claims, and the levels of compensation awarded in each. Key points to note are:
- 186,300 claims were accepted by employment tribunals during this period, representing a 15% decrease on the previous year;
- The average award in unfair dismissal claims was £9,133, while the median award was £4,560. Only 2% of all unfair dismissal awards were over £50,000;
- The largest amount of compensation awarded by a tribunal was just under £4.5 million, in a race discrimination claim. The median awards for discrimination claims ranged from £4,267 (religion or belief discrimination) to £13,505 (sexual orientation discrimination);
- The number of costs awards rose from 487 in 2010-11 to 1,411. [This statistic is skewed by a case in which 800 claimants were ordered to share the liability of one costs award. If those 800 awards are counted as one single costs award, the total number of costs awards was in fact 612. 81% of those 612 awards were awarded to respondents.]