Thought that only the US Congress was capable of passing laws with drafting errors? 9239905_s

Seems that this is what happened in the UK, which has a statutory prohibition against employee “victimisation”– in the US we might refer to this as discrimination and/or harassment.  The issue which has befuddled a few courts in the UK until it was recently clarified involved an alleged “error” in a provision of the Equality Act 2010, which by its language seems not to prohibit acts of victimisation committed against former employees – what we might call a form of “retaliation.”

Indeed, a couple of prior cases found that the statutory language of section 108(7) of the Act seemed to exclude former employees.

The Court of Appeal recently stated that this issue “is of practical importance because claims by former employees that their employer has acted to their prejudice following the termination of the employment – typically, though by no means only, by giving a bad (or no) reference – are not at all uncommon.”

The Court, trying to deal with the Act’s plain language which seemingly contravened broad EU Directives, said that in the context of the Act’s enactment – that it was intended to bring forward and strengthen prior law on victimisation:  “The upshot of all that is that at the time that the 2010 Act was drafted it was well-established that post-employment discrimination – which included victimisation – was unlawful.”    Moreover, the Court noted that the Act was intended to give effect to the requirements of a number of broad EU Directives, and that the crabbed interpretation of section 108(7) seemed to be a violation of the EU Directives.

The Court ruled:  “It seems to me clear that on a natural reading of the relevant provisions of the 2010 Act, taken on their own and without reference to any contextual material, post-termination victimisation is not proscribed. … However, once the proper contextual materials are considered it seems to me equally clear that that is not the result which the draftsman intended. … It follows that the apparent failure of the statute to proscribe post-termination victimisation is a drafting error. How that error arose is not possible to ascertain. … Accordingly the issue raised by this appeal is how far it is right to go to correct what is an undoubted drafting error: would that, as the EAT put it, involve crossing the Rubicon.”

Commentators have suggested that the UK Parliament could amend the Act, and/or that victimised former employees could sue the UK for its failure to implement EU law.

Takeaway:  As with retaliation in the US, it seems like best practice not to treat former employees differently than current employees, to only give “name, rank and serial number” when providing references (i.e., position held and dates of employment), and to be vigilant not to do any act or say anything to or about former employees that might be considered retaliation if said or done to current employees.