Post-employment victimisation: Why HR must handle former employees with care
If HR teams are ever tempted to believe that discrimination risk ends on an employee’s last working day, the recent employment tribunal decision in Ong v Aberystwyth University is a sharp reminder that it absolutely does not. Post-employment victimisation claims are alive and well under the Equality Act 2010, and they can carry a very significant price tag – particularly where a former employer’s conduct damages an ex-employee’s future career prospects.
What is victimisation?
Victimisation is often overlooked, but it is one of the most dangerous claims employers can face. Under section 27 of theEquality Act 2010, victimisation occurs where someone suffers a detriment because they have carried out a ‘protected act’. Protected acts include bringing discrimination proceedings, raising allegations of discrimination internally, giving evidence in someone else’s complaint, or otherwise asserting rights under the Equality Act.
Importantly, the protection is not limited to current employees. Section 108 Equality Act 2010 extends protection to conduct arising out of and closely connected with a former employment relationship. The principle was established long before the Equality Act in the House of Lords decision in Rhys-Harper v Relaxion Group plc, which confirmed that discriminatory conduct after termination can still be actionable where it stems from the employment relationship.
Ong v Aberystwyth University
That issue was front and centre in Ong v Aberystwyth University. Ms Ong, a former cleaner at the university, left her position following a breakdown in the employment relationship and brought tribunal claims against her ex-employer. After leaving employment, she secured a conditional offer for a new role with a local authority and requested a reference from the university. The reference stated that the university was ‘in dispute’ with her and repeatedly referred to the existence of litigation. Unsurprisingly, the offer was withdrawn.
The tribunal had little difficulty finding that the reference amounted to victimisation linked to Ms Ong’s protected acts, namely her tribunal proceedings. The tribunal described the University’s actions as “irresponsible and retaliatory”. The consequence was serious: compensation exceeded £260,000, with substantial losses flowing from the withdrawn job offer.
Other examples of post-employment victimisation
The case is a useful warning for HR professionals. References are an obvious danger area, but they are far from the only one. Post-employment victimisation can arise in a range of situations where emotions are still running high after a dispute.
One well-known example is St Helens Borough Council v Derbyshire. Although not a reference case, the House of Lords held that letters sent to employees warning about the financial consequences of pursuing equal pay claims amounted to victimisation. The employer’s conduct was seen as an attempt to pressure claimants into abandoning their legal rights.
Another example can be found in the litigation considered in Rhys-Harper itself, where former employees alleged discriminatory treatment linked to references, reinstatement issues and the handling of post-dismissal complaints. The courts recognised that the employment relationship does not simply vanish overnight for Equality Actpurposes.
Key takeaways
For employers, the practical message is straightforward. Once litigation or discrimination complaints arise, every subsequent interaction with the former employee should be approached carefully and objectively. References, regulatory reports, internal communications and even seemingly casual comments can all create risk if they are influenced, or appear to be influenced, by resentment over protected acts.
Employment may end, but Equality Act obligations do not.