DISCRIMINATION UPDATE PART 2:
TRICKY ISSUES UNDER THE EQUALITY ACT
Allan Roberts, Guildhall Chambers
Introduction
1. With the Equality Act 2010 approaching its second birthday, one would expect to look back and
see a degree of teething problems and perhaps a few appellate authorities on the newer strands
of discrimination. However, the area has proved fertile ground for appellate litigation. A talk on the
Act could cover just about every aspect of its remit, with each section being a discrete talk in
itself.
2. This seminar therefore focuses on three discrete areas:
a) Post-Termination Victimisation;
b) Dual Discrimination; and
c) Age Discrimination.
Post-Termination Victimisation
Introduction
3. Following the introduction of the Equality Act 2010, victimisation has been re-classified from an
act of discrimination to “Other Prohibited Conduct”. Consistent with this re-classification, a
comparator is no longer required. This is logical since the cause of action is not about less
favourable treatment but rather consequent treatment. Whilst this may all sound uncontroversial it
has led to a rather unfortunate and seemingly unintended side effect, namely the removal of the
right to bring a claim for post-termination victimisation. A classic example is that of a negative and
reactionary reference. The cause of action flows from the employer writing a reference because
the former employer had done a protected act.
Pre-Equality Act 2010
4. Prior to the Equality Act the various discrimination statutes did not expressly permit claims where
the act post-dated termination. Instead they related the action to the concepts of “employment” or
“employed” and actions by the “employer” all of which necessitated an on-going relationship. The
question of post-termination discrimination first arose before the EAT in Nagarajan v Agnew
[1995] ICR 520 and then the Court of Appeal in Post Office v Adekeye [1997] ICR 110, both
deciding that post-termination discrimination was not actionable.
5. However, in Coote v Granada Hospital Ltd (Case C-185/97) [1999] ICR 100, [1998] IRLR 656 the
European Court of Justice applied the principles of EU law and determined otherwise. Ms Coote
had brought a claim of sex discrimination, alleging her dismissal was because of her pregnancy.
When the Hospital later failed to provide her with an employment reference she bought a further
claim, alleging this was a reaction to her previous claim. The Employment Tribunal dismissed the
case, finding the Sex Discrimination Act 1975 only protected against discrimination during the
employment relationship. The ECJ determined the question by reference to the intended effect of
Article 6 of the Equal Treatment Directive 76/207. This required Member States to provide a
means for pursuing claims where equal treatment had not been afforded. The ECJ concluded this
would be undermined if fear of reprisals - which had no legal redress - led to workers being
deterred from taking action.1 It accordingly rejected the argument that acts post-termination were
outside the scope of the Directive. The matter returned to the EAT (Coote v Granada Hospitality
Ltd (No 2) [1999] ICR 942) where it declined to follow Adekeye. It held that s.6(2) SDA was
capable of being read as embracing a woman “who has been employed by him.”
1 Paragraph 24
