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Glaring Equality Act Lacuna Identified

In a ruling acknowledged to be of ‘considerable public importance’, the Employment Appeal Tribunal (EAT) has identified a glaring lacuna in the Equality Act 2010 that prevents employees claiming victimisation in respect of conduct post-dating the termination of their employment.

A car body repairer was dismissed from his job on the basis that he had passed the normal retirement age of 65. His employer had subsequently given him a ‘very poor’ reference and an employment tribunal found that this was because he had by then launched unfair dismissal proceedings. However, the tribunal ruled that, on a correct interpretation of section 108(7) of the Equality Act 2010, it had no jurisdiction to entertain the employee’s victimisation claim in that the conduct complained of had occurred after his employment ended.

Dismissing the employee’s appeal, the EAT noted: “We are amply satisfied that the effect of the literal words of section 108(7) is to produce a lacuna in the statutory scheme of protection from discrimination, harassment and victimisation which the UK is required by EU legislation to enact”. The EAT added that a broader interpretation of section 108(7), which would have enabled the employee to obtain relief, would ‘fly directly in the face of what Parliament has actually enacted’.

The employer had conceded that, by reason of alleged ignorance of the law, it had not correctly followed the procedures laid down in the Employment Equality (Age) Regulations 2006 and that the dismissal was therefore unfair. The question of how much compensation is due to the employee was remitted to the employment tribunal in the light of the employer’s arguments that the employee could have been fairly dismissed had the correct procedures been followed.