[Thanks to Paul Smith of Broadway House Chambers for preparing this case summary]
No, says the EAT in Rowstock Ltd v Jessemey.
The appellant was dismissed by reason of retirement when he reached 65. In dismissing him the employer had failed to comply with the statutory retirement procedures, and the appellant claimed unfair dismissal and age discrimination. As a consequence of the claim, the employer provided him with a very unfavourable reference and a victimisation claim resulted. The employer contended that s.108(7) Equality Act 2010 specifically disapplied the anti-victimisation provisions in circumstances where the employment relationship has ended. The employment tribunal agreed, and the Equality and Human Rights Commission intervened in the appeal of that decision.
All parties accepted that if s.108(7) had this effect it would not be compatible with the Equal Treatment Directive, but having reviewed the authorities on statutory construction the EAT (Mr Recorder Luba QC presiding) concluded that it would have exceeded its judicial remit if it were to construe the subsection in a wording directly opposite to that which had been expressed in the Act.
Therefore, no cause of action or remedy is available under the Equality Act 2010 for post-termination acts of victimisation. Permission to appeal has understandably been granted, but it may require Parliamentary intervention to close the loophole, ensuring continuity with the previous law and compliance with the Directive.