It has long been the case that employees are protected against victimisation which occurs after the termination of employment. Most commonly, this arises in the form of a bad reference. The case of Taiwo v Olaigbe involved more unusual circumstances. Ms Taiwo was employed by the Olaigbe family as a nanny and housekeeper, working under a migrant visa. She left her employment, complaining of mistreatment, and brought a race discrimination claim against her employers. Before her claim was determined, Mr and Mrs Olaigbe sent the hearing bundle to the UK Border Agency and asked the Agency to review Ms Taiwo's immigration status.
Upon discovering this, Ms Taiwo brought a separate claim, alleging that in asking for her immigration status to be reviewed, Mr and Mrs Olaigbe had committed an act of post-termination victimisation against her. Mr and Mrs Olaigbe attempted to get this claim struck out on the basis of an apparent loophole in the Equality Act 2010 – s108(7) of the Act expressly excludes post-employment complaints of victimisation.
At a pre-hearing review, the employment tribunal accepted that this is what s108(7) of the Equality Act states, but took the view that this must be a drafting error. Under previous discrimination legislation, former employees were expressly protected against post-termination victimisation, and Parliament had never expressed an intention to change this. The judge therefore took the bold step of interpreting the Equality Act 2012 purposively, effectively re-writing it to achieve the desired outcome. This meant that Ms Taiwo's claim was allowed to proceed.
Comment: Although the facts of this case and the judge's approach in re-writing the legislation are unusual (particularly for a first instance decision), the underlying principle is familiar. Employers should beware of doing anything which might suggest that a current or former employee is being treated unfavourably as a result of, for example, having made discrimination allegations.
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