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EAT clashes on post-employment victimisation claims

A recent decision by the Employment Appeal Tribunal (EAT) which, contrary to previous guidance, might enable individuals to make claims for victimisation against former employers is set to cause confusion for businesses.

The regulations which were replaced by the Equality Act in 2010 enabled individuals to make post-employment victimisation claims. However, the position under the Act has never been absolutely clear.

In March, the EAT dismissed an appeal regarding post-employment victimisation, stating that this was not governed by the Act.

Yet, ruling in a separate case just two months later, Mr Justice Langstaff, President of the EAT, said that, while the Equality Act did not specifically cover victimisation by a former employer, it did encompass discrimination and harassment after the employment relationship ended. Furthermore, there was no indication that Parliament had intended to change the law when introducing the Act, and doing so would breach the relevant European Directives.

However, he also stated that, given the contradictory decisions, permission to appeal the latest decision was granted so that a “definitive answer may be given”.