Employees and workers can be protected by the Equality Act 2010 (EqA) even after they have left employment, for example if a reference is discriminatory.
Summary
- Employees and workers can be protected by the EqA for discrimination which happens after they leave employment.
- Harassment and victimisation are also included.
- The main requirement is that the discrimination etc must arise out of and be closely connected to the employment.
- Common examples that should meet this test include discriminatory job references, and reasonable adjustments for an internal appeal hearing against dismissal.
- The discrimination need not be something that could have happened while they were actually employed.
Former workers are covered
Under s.108 EqA, a person (A) – such as a former employer – must not discriminate against or harass another person (B) if:
- the discrimination or harassment “arises out of and is closely connected to” a relationship which used to exist between them, such as a former employment, and
- conduct of a description constituting the discrimination or harassment would contravene the EqA if it occurred during the relationship, ie during the employment.
A negative job reference – whether given before or after the employment has ended – should be a breach of the EqA if it is discriminatory, under s.15 for example.
Even before amendments were made to expressly cover post-employment discrimation, a job reference after employment had ended was a prime example of what the House of Lords saw as covered by discrimination legislation, on a purposive interpretation: Relaxion Group Plc v Rhys-Harper (bailii.org) [2003] UKHL 33, at §§36-42. There is no time limit on this, if the employer would give a reference to someone without the protected characteristic. The House said, however, that if it is not the employer’s practice to give references for former employees, for example after the lapse of a certain time, then refusal of a reference after that time would not give rise to a well founded discrimination claim.
The second bullet point above does not mean the conduct must have been capable of occurring during employment:
Clark v Chief Constable of Derbyshire Constabulary (bailii.org), [2024] EWCA Civ 676, Court of Appeal
The court considered what is meant by s.108 EqA(1)(b) and (2)(b), ie conduct of a description constituting the discrimination or harassment would contravene the EqA if it occurred during the relationship, eg during the employment.The court said this wording is “not intended to act as a limitation on the scope of [s.108], that is, that the conduct must have been capable of occurring during the employment. Rather, these are words of identification, explaining what kind of conduct is meant to be caught by s.108(1)(b), namely the sort of conduct constituting discrimination as defined by Part 2 and falling within the scope of Parts 3 to 7 of the [EqA].” (§§60-66)
Therefore the claim in this case, for disability discrimination in relation to a police disablement gratuity which was only ever payable after leaving the police force, could fall within s.108 EqA. The conduct complained of was capable of being discrimination within ss.15 and 19, in EqA Part 2. Also the conduct was of a kind falling within the scope of EqA Part 5 (work), notably s.39(2) as it involved access to benefits, for example. (§§67-70)
The court said that if employers, as a matter of contract or practice, provide benefits for former employees such as concessionary travel, or access to social or sports clubs, or gratuities for those injured in the workplace, it is unlawful for the employer to discriminate in respect of such benefits. There is “no reason to suppose Parliament intended to make it unlawful to discriminate only in respect of those benefits which, as it happens, could have been provided during the relationship, but where the discrimination occurs after the end of the relationship”. (§65)
S.108 includes – after the end of the relevant relationship – not just employees/workers, but also others covered by the EqA employment provisions. Examples include police officers (as in the Clark case, above), and partners: Employees, workers and beyond>Extension beyond employees/workers.
The Employment Code discusses s.108 at para 10.57-10.62.
Reasonable adjustment duty
S.108 includes a breach of the reasonable adjustment duty after employment ended, if the breach arises out of and is closely connected to the former employment.
An employee has been dismissed, and appeals to the employer against the dismissal. Even if the internal appeal hearing, takes place after the employment has terminated, under s.108 the reasonable adjustment duty will apply to the hearing, so as to require reasonable steps to enable the employee to have her say there,
A disabled former employee’s benefits include life-time use of the company’s in-house gym facilities. The employer or owner of the premises must make reasonable adjustments to enable the former employee to continue using the facilities even after she has retired.
Equality Act Explanatory Notes (legislation.gov.uk), at §354
Technical provisions on reasonable adjustment duty under s.108
The general wording of s.108(1) EqA might be thought to cover the reasonable adjustment duty already, because a failure to make reasonable adjustments is “discrimination” (EqA s.21(2) and Schedule 28). In any event:
- s.108(4) says that a duty to make reasonable adjustments applies to A (the employer etc) if B is placed at a substantial disadvantage as mentioned in s.20 EqA, and
- s.108(5) says that for the purposes of s.108(4), the statutory provisions on reasonable adjustments – ss.20, 21 and 22 and the applicable Schedules (Schedule 8 for employment) – are to be construed as if the employment or other relationship had not ended.
S.108(4)(5) applies to A and B as defined in s.108(1)(2)EqA. So it appears that – and seems sensible that – the reasonable adjustment duty only applies where the breach arises out of and is closely connected to the former employment, as set out in s.108(1).
The wording of s.108(4) does not fit happily with the anticipatory reasonable adjustment duty that applies outside of employment, and to least some employment services: see Former workers, customers and students>Technical note: s.108(4) and anticipatory reasonable adjustment duty.
Victimisation
From the wording of the EqA, it might be thought that victimisation (detriment because one made an EqA claim etc) which happens after the employment has ended is not covered by the EqA. However the Court of Appeal has held that it is covered by s.108, in the same way as discrimination: Post-employment victimisation covered.
Former customers, students etc
S.108 also applies to other parts of the EqA, for example discrimination by a shop against a former customer, or by a university against a former student: Former workers, customers and students.
