In Jessemey v Rowstock, Mr Jessemey brought a claim for age discrimination against his former employer. As a result, the employer gave him a negative reference and so Mr Jessemey brought a further claim for victimisation. Both the employment tribunal and the Employment Appeal Tribunal (EAT) found that the 2010 Act did not protect him on the basis that such protection is expressly excluded by section 108 (UKEAT/0112/12; see News brief "Post-employment victimisation: a gap in the legislation").

In Onu v Akwiwu, Mrs Onu alleged that following the issue of her tribunal claim for race discrimination, her employers, Mr and Mrs Akwiwu, made threats in order to pressure her to withdraw her claim (see "Race discrimination" below). Contrary to Jessemey, the EAT held that the 2010 Act could be interpreted as covering post-employment victimisation (UKEAT/0022/12; www.practicallaw.com/4-530-4589).

Court of Appeal decisions. Faced with the unusual situation of two contradictory EAT decisions, the court held that the 2010 Act does provide for claims of post-employment victimisation, as required by the Equal Treatment Framework Directive (2000/78/EC), the Race Directive (2000/43/EC) and the European Court of Justice decision in Coote v Granada Hospitality Ltd (C-185/95, www.practicallaw.com/5-100-8880).

In Jessemey, the court overturned the EAT's decision and confirmed that such claims can be brought in employment tribunals. The court's reasoning was as follows:

In Onu, the court applied its reasoning in Jessemey and upheld the EAT's decision on the victimisation issue.

The appeals in Onu and Taiwo arose out of broadly similar situations. In both cases, the claimants were migrant workers who came to the UK to work as domestic servants and suffered terrible mistreatment by their employers.

In Onu, the employers' treatment included controlling Mrs Onu's movements and retaining her passport, and drafting a contract which stated that if she absconded within a year of starting work, she would be reported to the police and the immigration authorities. In Taiwo, the employers' treatment included not giving Mrs Taiwo enough to eat, hitting her, and controlling her movements and retaining her passport.

Both claimants brought tribunal claims for race discrimination against their employers. The tribunals found, broadly speaking, that the claimant in each case was mistreated because she was a vulnerable migrant worker who was reliant on her employer for her continued employment and residence in the UK. The tribunal in Onu held that this constituted direct race discrimination, whereas in Taiwo, the tribunal held that it did not.

The EAT held, in separate but linked judgments, that the treatment in each case did not constitute direct race discrimination, but that the real reason for it was the claimants' vulnerability arising from their migrant status, and not their race (UKEAT/0022/12; and UKEAT/0254/12).

Court of Appeal decision. The court unanimously confirmed the EAT's view that the mistreatment did not amount to direct race discrimination. The court held that there were two key questions:

The first question was answered in the affirmative, but the second in the negative. The court held that there is no exact correspondence between nationality and immigration status: while it is obvious that only people with non-British nationality are migrant domestic workers, what matters is that not all non-British nationals working in the UK are migrant domestic workers or share an equivalent vulnerability. The court pointed out that there are many non-British nationals working in the UK whose conditions of leave to enter or remain permit them to work freely and who are not vulnerable in the same way as those whose right to work is, in practice, dependent on their current employer.

The court relied on the Supreme Court's decision in Patmalniece v Secretary of State for Work and Pensions ([2011] UKSC 11). While it was true that Patmalniece was concerned with a provision of EU, rather than domestic, law, the court held that the relevant principles were the same: the Supreme Court in Patmalniece had referred to both EU and domestic case law on the nature of direct discrimination. Patmalniece was also recently applied by the Supreme Court in the context of the 2010 Act in Preddy v Bull ([2013] UKSC 73).

On indirect discrimination, the court again agreed with the EAT, stating that the provision, criterion or practice (PCP) pleaded by Mrs Onu (the mistreatment of migrant domestic workers) was invalid. The court held that if the acts of mistreatment committed by Mr and Mrs Akwiwu did not constitute direct discrimination because the relevant ground was absent, they could not be converted into the application of a discriminatory PCP.

The clarification brought by Jessemey and Onu will be welcomed by employment tribunals faced with claims for post-employment victimisation. As regards methods of domestic construction, interestingly, the court's use in Jessemey of the Inco rectifying construction route contrasts with that taken by the EAT, which preferred to follow Relaxion Group v Rhys Harper ([2003] UKHL 33; www.practicallaw.com/5-107-1287).

There are now three different appellate authorities on the meaning of section 108, each of which takes a different view of the proper construction of the 2010 Act. Ultimately, however, the court made clear that, given that the UK's EU obligations clearly require claims for post-employment victimisation to be available, and that section 108 is patently a drafting error, the exact wording is not of paramount importance.

When faced with the argument that the court should determine the question of the existence of such claims under the 2010 Act outside the remit of employment law, the court was not persuaded that anything needed to be done about section 108. The court's view was that all that mattered for these purposes was that section 108 could have no meaning which is inconsistent with post-termination victimisation being unlawful.