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Onu v Akwiwu anor – Post-employment victimisation is covered by the Equality Act 2010

In Onu v Akwiwu anor the EAT considered again whether protection from post-employment victimisation was covered by the Equality Act 2010 (“the Act”). Langstaff P hearing the appeal as Chair of the panel departed from the EAT’s previous decision in Rowstock Ltd v Jessemey and held that post-employment victimisation was unlawful under the Act.


Ms Onu was a Nigerian migrant employed as a domestic worker by a Nigerian family. She left her employment on the basis she had been exploited by her employers and subsequently brought a number of tribunal claims including unfair dismissal, race discrimination and failure to pay the National Minimum Wage.

Her former employer, Mr Akwiwu proceeded to telephone the claimant’s sister in Nigeria saying that Ms Onu had sued him and that “if she thought things would end there she was wrong” and that “she would suffer for it”. Ms Onu then brought an additional claim of victimisation.

First instance decision

At the Employment Tribunal it was held that the claimant’s victimisation claim failed on the basis that she had not properly established that the reason she received the threats from her former employer were because she had commenced proceedings in respect of race discrimination.

The tribunal found in the claimant’s favour in respect of her unfair dismissal and claim for failure to pay the National Minimum Wage.

Her employer appealed on the latter two points and Ms Onu cross-appealed on the tribunal’s decision on post-employment victimisation.

Employment Appeal Tribunal

The EAT rejected the Tribunal’s reasoning and held instead that Mr Akwiwu’s call to the claimant’s sister could amount to victimisation within the meaning of the Act despite the fact he did not specifically refer to her discrimination claim against him.

Langstaff P then considered the respondent’s argument which was that post-employment victimisation was precluded by virtue of section 108(3) of the Equality Act, which makes it unlawful to discriminate or harass a former employee, but which does not specifically detail ‘victimisation’ as unlawful in this context. The EAT also considered the fact that pre-Equality Act legislation had been amended as recently as 2003 to give effect to EU Directives and provide ‘former employers’ with protection from post-employment victimisation and went on to state that there was no Parliamentary material suggesting the Act (which replaces the previous separate anti-discrimination legislation) represented a dramatic shift in the law.

In a complicated judgment the EAT held that section 108(7) did not specifically exclude victimisation as a head of claim under the clause which permits claims to be brought in connection with post-employment events and in its interpretation of the Act in respect of EU law, went on to say:

“The whole legislation is designed to prohibit discrimination in many contexts. It regards victimisation as reprehensible. The grain of the legislation is in favour if the approach we would support.”

The EAT went to great lengths to find, contrary to its previous decision in Jessemey, that the Act does protect former employees from post-employment victimisation and its point in respect of its duty to interpret domestic legislation in line with EU law, is well argued.

What does this mean for post-employment victimisation?

The Court of Appeal is going to consider this issue as Jessemey is scheduled to be heard in the second half of the year.

It is our view that it would be sensible to proceed on the basis that it is likely that victimisation of a former employee will be deemed to be covered by the Equality Act, whether as a result of the decisions in the forthcoming appeals to the CA, or by way of any proposed changes to legislation. Employers should therefore ensure they do not act in a way which the employee may perceive to be victimisation and thus protect themselves from a potentially successful tribunal claim.  For example, any reference should be factual.

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