Mr Jessemey brought a claim for age discrimination against his former employer. As a result, his former employer gave him a negative reference and so he brought a further claim for victimisation (see box "Victimisation"). However, the employment tribunal and EAT both found that the 2010 Act did not protect him.

The European Court of Justice (ECJ) has held (in the context of sex discrimination) that protecting employees against post-employment victimisation is a requirement of EU law (Coote v Granada Hospitality, C/185/9; www.practicallaw.com/5-100-8880)

The House of Lords also held in Rhys-Harper v Relaxation Group plc and other cases that post-employment victimisation was prohibited under the pre-2010 Act legislation that prohibited discrimination on grounds of sex, race or disability, even though there was no express prohibition ([2003] UKHL33; www.practicallaw.com/5-107-1287). Shortly after that decision, the legislation was amended to expressly prohibit post-employment victimisation, ensuring compliance with EU law.

There is no reason to believe that Parliament intended to remove protection for post-employment victimisation when it replaced the previous discrimination legislation with the 2010 Act. The aim of the 2010 Act was to harmonise and strengthen discrimination law. Indeed, it seems clear from the explanatory notes to the 2010 Act that this was an oversight. The notes state, in relation to section 108, that: "A breach of this section triggers the same enforcement procedures as if the treatment had occurred during the relationship. However, if the treatment which is being challenged constitutes victimisation, it will be dealt with under the victimisation provisions and not under this section".

In fact, the victimisation provisions do not deal with post-termination treatment, leaving a gap in the legislation. The question for the EAT was whether this mistake could be rectified.

The EAT considered the case law and the explanatory notes to the 2010 Act. It also noted that the Equality and Human Rights Commission's statutory code of practice on employment states that former employees are protected from victimisation. It acknowledged that it was "highly unlikely" that Parliament intended to remove protection for post-employment victimisation. However, it also noted that this was the clear meaning of section 108(7) of the 2010 Act.

The EAT considered whether it could interpret the 2010 Act in a way that was consistent with EU law, so as to provide a remedy for post-termination victimisation. It referred to the limits to its powers of interpretation set out by the House of Lords in Ghaidan v Godin-Mendoza and the fact that any interpretation must be compatible with the thrust of the legislation being construed ([2004] UKHL 30).

The EAT described it as "tempting" to adopt an interpretation that ensured protection against post-employment victimisation. However, it decided it could not, both because of the difficulty in effectively re-drafting the legislation and because it would require it to decide that section 108(7) of the 2010 Act means the exact opposite of what it says.

The EAT concluded that it was not within its powers to do this as "no judicial tool is available to make available a remedy which the words used by Parliament have simply stated shall not be available".

One argument which appeared to have been put before the EAT is that, in the context of EU discrimination law, the courts can go further than simply striving to interpret UK legislation (as permitted by Ghaidan) and can actually disapply inconsistent legislation, even in a dispute between private individuals. This is based on the ECJ's decision in Kucukdeveci v Swedex GmbH & Co KG, where it held that discrimination law reflects a general principle of EU law and so, unlike law which simply derives from a directive, national courts have a duty to disapply inconsistent national legislation (C-555/07).

This argument was advanced in X v Mid Sussex Citizens Advice Bureau, where both the Court of Appeal and the Supreme Court said that they might well have thought it worthy of a reference to the ECJ, had they not decided the case on other grounds ([2011] EWCA Civ 28; [2012] UKSC 59, www.practicallaw.com/2-523-7831).

However, the EAT implicitly rejected this argument but did not explain its reasons for doing so.

It seems clear that the 2010 Act contains a drafting error, and the EAT has granted permission for Mr Jessemey to appeal to the Court of Appeal.

Employees who suffer post-employment victimisation are likely to continue to put in claims, pending the outcome of any appeal. They might also be able to bring a claim for whistleblowing in some cases. The Employment Rights Act 1996 (ERA) prohibits former employees from being subjected to a detriment on the basis that they have made a protected disclosure; this includes disclosing to their employer that someone has failed to comply with a legal obligation.

A complaint by an employee that his employer has discriminated against him (or someone else) could therefore amount to a protected disclosure, so that if the employee were subjected to a detriment as a result, he would have a claim. Clearly, this is not as wide as victimisation, as it would not cover a full range of "protected acts". In addition, the government is proposing to amend the ERA from autumn 2013 so that protected disclosures will only attract whistleblowing protection if made in the public interest. This might limit the availability of this route. However, we are likely to see claims being pleaded in this way in the near future.

Irrespective of whether there is an appeal in this case, a rapid amendment to the 2010 Act to bring it into line with EU law would be welcome. If there is no change in the 2010 Act and no change in the courts' interpretation of it, employees might try to bring a Francovich claim against the government (that is, the principle established in Andrea Francovich and Others v Italian Republic, which allows the enforcement of state liability for failure to implement EU law (C-6/90 and 9/90)).