Employment Tribunal finds victimization over negative reference

A former worker at a West Berkshire firm has had his Employment Tribunal claims for unfair dismissal, unlawful age discrimination, and victimization upheld by the Employment Appeal Tribunal.

Mr Jessemy began employment with Rowstock Limited, which sells and maintains Nissan automobiles, as a car body repaier in March 2008. He reached the age of 65 on 17 January 2010 and a year later a director of the company – Mr Davis – told Mr Jessemy that the company did not wish to employ men over 65. Mr Jessemy was given notice in lieu and therefore did not return to work. In February 2011 the company gave a very poor reference about Mr Jessemy to an employment agency, from whom he had sought assistance in finding new employment. Mr Jessemy subsequently brought Employment Tribunal claims for unfair dismissal, age discrimination, and victimization.

The Employment Tribunal upheld Mr Jessemy’s claims for age discrimination and unfair dismissal but rejected his claim for post-employment victimization, holding that the Equality Act 2010 did not extend protect against victimization to conduct which had occurred after the employment relationship had ended. Mr Jessemy appealed this ruling and the matter went to the Employment Appeal Tribunal.

The Employment Appeal Tribunal held that post-employment victimization was in fact covered by the Equality Act 2010 and that Mr Jessemy’s claim for victimization (on the basis that he had brought the claim for unfair dismissal) was well-founded. The Employment Appeal Tribunal therefore held that Mr Jessemy had been victimized by Rowstock’s provision of an extremely poor reference to him, the nature of which had – the Tribunal concluded – come about as a result of Mr Jessemy’s actual or threatened Employment Tribunal claim.

Chris Hadrill, an employment law solicitor, commented on the Employment Appeal Tribunal’s judgment: “This is an important case as it substantially extends the remit of the Equality Act 2010, rendering employers liable for poor references – or their equivalent – if those references are motivated by the bringing of Employment Tribunal proceedings.”