Rowstock v Jessemey (Court of Appeal)

In brief

The Court of Appeal confirmed that EA 2010 s.108 does protect against post-employment victimisation, resolving a drafting lacuna. The Act was drafted in a way that appeared to cover post-employment harassment and discrimination arising from earlier protected acts, but to leave post-employment victimisation unprotected. The court applied purposive interpretation: Parliament clearly intended post-employment protection to extend to victimisation as it had under the predecessor legislation. The court distinguished this situation from pure post-employment discrimination (where the gap was intentional) and held that victimisation after a relationship ends, based on a protected act, is covered by s.108.

Key provisions

• s108-post-employment-victimisation — EA 2010 s.108 protects against post-employment victimisation (purposive interpretation): EA 2010 s.108 protects against post-employment victimisation. The court applied purposive interpretation to resolve a drafting lacuna — Parliament clearly intended post-employment protection to extend to victimisation as it had under predecessor legislation. Distinguished from pure post-employment discrimination (where the gap was intentional).

When relevant

Cite when: (a) post-employment adverse action (reference refusal, professional body referral, post-termination retaliation) is at issue; (b) protected act occurred during the employment relationship; (c) need to establish s.108 covers victimisation alongside discrimination and harassment; (d) TNB cases where former employer took adverse action after termination based on trans-related grievance or claim raised during employment.