In the case of Rank Nemo (DMS) and others vs Coutinho, the court saw no reason, why, if the victimisation claim was proved, the claimant could not receive both the original tribunal award and damages for any detriment or loss of benefit suffered as a result of the victimisation.
Coutinho, who was of Asian origin, was made redundant by VIS in 2004. The undertaking was transferred to Rank Nemo later that year via TUPE. In 2006, Countinho won claims of automatic unfair dismissal and race discrimination in relation to his redundancy. He was awarded over £72,000 in compensation.
Rank Nemo was liable for the award as a result of the TUPE transfer. Coutinho did not receive any of the award monies, despite having obtained an order from Slough County Court, so he presented an employment tribunal with the claim that Rank Nemo's failure to pay the award was an act of victimisation contrary to the Race Relations Act 1976. The tribunal found that this was a question of enforcement with which it had no power to interfere. On appeal, the Employment Appeal Tribunal held that Coutinho was not seeking to enforce the judgment debt and directed that the claim be accepted. Rank Nemo appealed.
The Court of Appeal dismissed Rank Nemo's appeal, holding that the tribunal did have jurisdiction to accept Coutinho's claim. His status as a judgment creditor did not sever all links to his past employment. Nor, as Rank Nemo argued, was the claim in reality an allegation that it had failed to honour the tribunal award. The court noted that Rank Nemo's failure to pay the judgment debt was only one element of the claim. Even if the debt was paid immediately, the victimisation claim could continue.
The claim will now proceed to a full hearing where the tribunal will decide whether there is a sufficiently close connection between Rank Nemo's failure to honour the compensation award and Coutinho's expired employment to support a claim for post-employment victimisation.
This is a clear message to employers who believe that the tribunal has no teeth when it comes to enforcing discrimination awards.
The Government last month announced as many as one in four employers is refusing to pay tribunal awards. As a result, justice secretary Jack Straw has initiated plans to enhance powers of enforcement against those whom he called ‘rogue employers'. This case demonstrates that an employer who is unable to provide a satisfactory reason for refusing to pay an award may well face a further claim for victimisation resulting in further legal costs and awards, if successful.
Since 1 April 2009 employers who fail to pay tribunal awards also risk being named and shamed on the register of judgments, which is open to public viewing.
Kim Abbott is a solicitor on the employment team at Weightmans LLP
