Prior to the Equality Act 2010, it had been recognised for quite a while that acts of victimisation taking place after the end of the employment relationship were unlawful under the preceding legislation (See Rhys Harper v Relaxion Group PLC  UKHL 33). This would cover, for example, refusing to give an employee a reference for discriminatory reasons. However, it seems that the Equality Act doesn’t clearly cover this situation – although it is certain that this is not intentional. Notwithstanding an earlier Employment Tribunal decision which interpreted the Act purposively, and Equality and Human Rights Commission guidance suggesting that post employment victimisation is covered, in Rowstock Ltd v Jessemey, the Employment Appeal Tribunal has made it plain that it would not be right to fill the gap in the legislation judicially, because:
The instant situation is one in which express provision has been made for the post-relationship landscape but subject to an equally express exception in the case of victimisation
Moreover, the section of the Equality Act in question applies not just to employment cases, but to other legal relationships (such as the provision of services and landlord and tenant matters).
The case is to be considered by the Court of Appeal, and it is reasonable to assume that amending legislation will be on the cards, given that there appears to be a breach of the relevant European Union directive.
So at the moment the gap remains – and it is a one which, from an employee perspective, needs to be filled, although from the employer’s point of view it is one less thing to worry about, for now.