The EAT has ruled that post-employment victimisation is unlawful, departing from its previous decision in Rowstock v Jessemy. (Onu v Akiwiwu)
Such victimisation often consists of an employer giving an unfairly negative reference or refusing to give a reference (when it is normal practice to do so) for an ex-employee because they made a discrimination claim.
The conflicting decisions derive from a drafting error in the Equality Act. The government did not intend to exclude protection from such conduct, but the EAT has reached conflicting conclusions as to whether the wording can be interpreted to provide it or, if not, whether words can be read in to comply with EU law. The issue will have to be resolved by the Court of Appeal, due to hear Rowstock later this year.
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