Jessemey v Rowstock (CA)

In brief

Court of Appeal, 26 February 2014. *** CAUSE TITLE: Jessemey v Rowstock Ltd & Anor — JESSEMEY (the dismissed employee) is the APPELLANT/claimant; Rowstock Ltd is First Respondent and Mr Davis (a director) Second Respondent. Our record previously had the parties BACKWARDS. *** Panel: Maurice Kay LJ (Vice-President), Ryder LJ, Underhill LJ. *** THE SINGLE REASONED JUDGMENT IS UNDERHILL LJ's. ELIAS LJ DID NOT SIT ON THIS CASE AT ALL. *** No dissent. THE ISSUE: EA 2010 s.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'. Does the Act protect a FORMER employee against victimisation? Jessemey, dismissed by a small car dealership after bringing an age discrimination claim, was then given a poor reference. The ET found the reference retaliatory but held it had no jurisdiction because of s.108(7). The EAT in THIS case (Mr Recorder Luba QC) AGREED — no protection. HELD — APPEAL ALLOWED. JESSEMEY WON. The omission is an 'undoubted drafting error' [138] and the court corrected it by implying additional words into s.108. *** THE MECHANISM — TWO INDEPENDENT, SELF-SUFFICIENT ROUTES, AND OUR RECORD HAD NEITHER: *** (1) a PURELY DOMESTIC rectifying construction applying the Inco Europe v First Choice Distribution three-condition test for correcting a frank drafting error [184]-[200]; and (2) an EU-CONFORMING construction (the Ghaidan approach, given the Equal Treatment Directive obligation as construed in Coote v Granada Hospitality C-185/97) [143]-[179]. Underhill LJ expressly held the DOMESTIC route ALONE disposes of the appeal, making it 'unnecessary... to express a view' on the s.39(4) alternative [200], and that in a frank-drafting-error case there is 'no real difference' between the two approaches [198]. NOTE WHAT WAS *NOT* DONE: s.108(7) was NOT read purposively or narrowly. It is left standing VERBATIM; the court implied additional words into s.108 to create the missing prohibition, treating s.108(7) as a 'double recovery' backstop of essentially no remaining practical effect. s.108(7) remains textually UNAMENDED to this day — the fix is judge-made, never codified. PROCEDURAL CONTEXT: 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; both were heard together in the CA with Jessemey as lead. Do not conflate the two EATs.

Key provisions

• [138], [140] — The drafting-error finding: s.108(7)'s exclusion of victimisation is an 'undoubted drafting error', not intended legislative policy — framework — cite where a statute's literal wording defeats its evident purpose.
• [184]-[200] — *** THE DOMESTIC RECTIFYING CONSTRUCTION (Inco Europe route): THE BREXIT-RESILIENT LIMB *** — The court corrects the error on PURELY DOMESTIC principles (the Inco Europe v First Choice Distribution three-condition test), INDEPENDENT of EU law, and holds this self-sufficient to allow the appeal [200] — claimant/framework — *** CITE THIS ROUTE SPECIFICALLY, not the EU-law limb, for post-2024 robustness. *** This is the reason the authority survives the REUL Act 2023.
• [143]-[179] — The EU-conforming construction (Ghaidan / Marleasing-type route): An ALTERNATIVE, non-dispositive ground, given the Equal Treatment Directive obligation per Coote v Granada Hospitality (C-185/97) — framework — CURRENCY-WATCH: flag verify-on-cite given REUL Act 2023 uncertainty around Marleasing-style conforming interpretation from 1 Jan 2024. Do not rest a post-2024 argument on this limb when the domestic limb is available.
• [198] — The two routes converge: In a frank-drafting-error case there is 'no real difference' between the domestic and EU-conforming approaches — framework.
• [27] — The Rhys-Harper legislative-history anchor: Predecessor legislation already protected post-termination conduct (Rhys-Harper v Relaxion Group [2003] ICR 867 (HL)); it would be 'arbitrary and capricious' for Parliament to have withdrawn it — framework — the purposive-intent anchor.
• Disposal (final para, c. [201] — exact number NOT independently confirmed; do not quote the number): Appeal allowed — 'In my view post-termination victimisation is proscribed by the 2010 Act, and I would allow the appeal accordingly' — claimant — confirms the outcome direction: 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.