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Former employees/ workers

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Last updated 5th December 2017.

Employees and workers can be protected by the Equality Act even after they have left employment, for example if a reference is discriminatory.

Former employees are protected by the Equality Act after the end of their employment, if the discrimination or harassment ‘arises out of and is closely connected to’ the employment, and would contravene the Act had it occurred during the employment (s.108 EqA, Employment Code para 10.57-10.62).

A negative job reference given after the employment has ended can be a breach of the Equality Act, if discriminatory.

The same provision also applies to other workers, partners etc within the Equality Act after the end of the relevant relationship.

Victimisation

If one looks at the wording of the Equality Act, it might be thought that victimisation post-employment is not covered. However the Court of Appeal held in 2014 that it is covered. See Victimisation: Is post-employment victimisation covered? Yes

Reasonable adjustment duty

An employee has been dismissed, and appeals to the employer against the dismissal. The reasonable adjustment duty should apply to the internal appeal hearing, so as to enable the employee to have her say there, even if it takes place after the employment has terminated.
See below for technical issues on this.

The general wording of S.108(1) EqA seens to cover the reasonable adjustment duty where the matter arises out of and is closely connected to the employment.

Also s.108(4) EqA states that post-employment obligations include a duty to make reasonable adjustments ‘in so far as [the employee] continues to be placed at a substantial disadvantage as mentioned in section 20’. The Equality Act Explanatory Notes (link to legislation.gov.uk), at para.354, give the example of reasonable adjustments to enable continued use of an in-house gym, where a disabled former employee’s benefits include life-time use of the gym.

The word ‘continues’ in s.108(4) is somewhat odd. Does it mean the disadvantage must already exist at the end of the employment? For example, would it then cover an adjustment to an internal appeal hearing related to the dismissal, as in the example above? Surely that should be covered. ‘Continues’ seems unlikely to be interpreted in this way, especially since the wording in the previous Disability Discrimination Act 1995 had no such limitation. Also, it can be said that the general wording of S.108(1) EqA in any event covers the reasonable adjustment duty where the matter arises out of and is closely connected to the employment.