Jessemey v Rowstock (CA)

In brief

The Court of Appeal held that the Equality Act 2010 protects former employees against victimisation, correcting an 'undoubted drafting error' [37] in section 108, and allowed Mr Jessemey's appeal. In Jessemey v Rowstock Ltd & Anor (26 February 2014), Mr Jessemey, the dismissed employee, was the appellant and claimant; Rowstock Ltd was the first respondent and Mr Davis, a director, the second respondent. Section 108 covers post-relationship discrimination and harassment (s.108(1)-(2)), but s.108(7) expressly excludes conduct 'in so far as it also amounts to victimisation'. Mr Jessemey, dismissed by a small car dealership after bringing an age discrimination claim, was then given a poor reference. The employment tribunal found the reference retaliatory but held it had no jurisdiction because of s.108(7), and the EAT in this case (Mr Recorder Luba QC) agreed that there was no protection. The Court of Appeal allowed the appeal and corrected the omission by implying additional words into s.108. It gave two routes: a purely domestic rectifying construction, applying the three-condition test in Inco Europe v First Choice Distribution for correcting a frank drafting error [50]-[52]; and an EU-conforming construction (the Ghaidan approach, given the Equal Treatment Directive obligation as construed in Coote v Granada Hospitality C-185/97) [38]-[48]. Underhill LJ said that in a frank-drafting-error case there is 'no real difference' between the two approaches [53], and that adopting the Inco route made it 'unnecessary for me to express a view' on Langstaff J's section 39(4) reasoning in Onu [54]. The court implied additional words into s.108 to create the missing prohibition and left s.108(7) as it stands. It found the 'double recovery' explanation of s.108(7) unconvincing [45] and left its real effect, if any, undecided, holding only that it can have no meaning inconsistent with post-termination victimisation being unlawful [49]. Section 108(7) remains textually unamended; the fix is judge-made and has never been codified. This was the lead case of two conflicting EAT decisions: a differently constituted EAT (Langstaff J) reached the opposite view two months later in the companion case Onu v Akwiwu, and both were heard together in the Court of Appeal, with Jessemey as the lead case.

Key provisions

• [36]-[37] — The drafting-error finding : The statute's apparent failure to prohibit post-termination victimisation is an 'undoubted drafting error' [36]-[37], not intended legislative policy; the effect of s.108(7) was left open [49] — framework — relevant where a statute's literal wording defeats its evident purpose.
• [50]-[52] — The domestic rectifying construction (Inco Europe route) : The court also corrects the error on purely domestic principles (the Inco Europe v First Choice Distribution three-condition test) [50]-[52], a route that does not depend on EU law; adopting it made it 'unnecessary for me to express a view' on Langstaff J's s.39(4) reasoning in Onu [54] — claimant/framework. This domestic route is why the authority should not be disturbed by the REUL Act 2023.
• [38]-[48] — The EU-conforming construction (Ghaidan / Marleasing-type route) : The EU-conforming route (Ghaidan), given the Equal Treatment Directive obligation per Coote v Granada Hospitality (C-185/97) — framework — subject to REUL Act 2023 uncertainty around Marleasing-style conforming interpretation from 1 Jan 2024.
• [53] — The two routes converge : In a frank-drafting-error case there is 'no real difference' between the domestic and EU-conforming approaches — framework.
• [30] — The Rhys-Harper legislative-history anchor : When the 2010 Act was drafted, post-termination discrimination and victimisation were already unlawful (Rhys-Harper v Relaxion Group [2003] ICR 867 (HL)); Underhill LJ agrees with Lord Nicholls that protection ending at the moment employment terminates would be 'arbitrary and capricious and cannot have been intended by Parliament' [30] — framework — the purposive-intent anchor.
• [55] — Disposal : Appeal allowed — 'In my view post-termination victimisation is proscribed by the 2010 Act, and I would allow the appeal accordingly' [55]; Ryder LJ and Maurice Kay LJ agree [56]-[57] — claimant — the employee won.

When relevant

Post-employment victimisation claims under EA2010 s.108. Where a protected act is done or a detriment suffered after the employment, service, or other qualifying relationship has ended. References, professional body decisions, or any action taken against a former employee or service user because of a protected act.