Published July 2013
Can ex-employees still bring victimisation claims against their former employers?
In Onu v Akwiwu, Mrs Onu was exploited by her employers. She left and brought claims of unfair dismissal and race discrimination.
Six months later, her former employer contacted her family to complain that she had brought a Tribunal claim and stated that “she would suffer for it”. If an employee is subjected to a detriment because they have brought a discrimination claim, threatened to bring a claim or been involved in a discrimination claim, this is victimisation.
The employee can bring a claim for unlimited compensation. It has traditionally been the case that former employees could also bring victimisation claims and these claims often arose in the context of reference requests being refused. When the Equality Act 2010 came into force, the victimisation provisions were worded differently and Tribunals have been rejecting post-termination victimisation claims as a result. However, in Mrs Onu’s case, it was decided that former employees can still bring these claims.
This issue is likely to be considered further by the Tribunals. However, in the meantime, employers should ensure that they avoid victimising employees both during and after their employment ends.
Can PILONs still be used to terminate employment?
In Société Générale v Geys, Mr Geys was told by his employer that he was being dismissed summarily, pursuant to a payment in lieu of notice clause (PILON) in his contract.
Mr Geys argued that his employment continued because his employer had not acted exactly in accordance with the terms of the PILON which required immediate payment of his notice pay.
The Supreme Court agreed and held that Mr Geys was employed until he received unequivocal communication of his employer’s decision to dismiss him by making a payment in lieu of notice.
Further, where an employer decides to exercise a contractual right to terminate an employee’s employment under a PILON, the employer needs to make it clear to the employee both that it is making a PILON and that it is doing so in exercise of its contractual right to summarily terminate the employee’s employment. Therefore, employers need to act carefully when dismissing an employee. If there is any irregularity in the dismissal, the employee can elect not to accept the dismissal and remain in employment.
Often, employees will not take this approach as they would rather receive their notice pay. However, employees may wish to keep their employment alive in order to benefit from bonuses, share options or other valuable benefits which accrue shortly after a purported dismissal.