Scope widens in victimisation win

Enforcement of tribunal awards can be difficult. However, in discrimination cases, the failure of an employer to make payment can in itself give rise to a claim of victimisation.

In Rank Nemo Ltd v Coutinho [2009] EWCA Civ 454 the employee successfully brought a claim of discrimination. However, the award of £72,500 to Coutinho remained unpaid, even after he obtained a county court judgment directing enforcement.

Coutinho believed that his ex-employer, by not paying the tribunal award, was penalising him for having brought a discrimination claim. Accordingly, he brought a new claim for victimisation in an employment tribunal. Countinho’s former employer disputed his right to bring the new claim.

The Court of Appeal found that Coutinho’s claim was not brought to enforce a tribunal award, which would have been outside of the employment tribunal’s remit, but because the ex-employer’s conduct was believed by Coutinho to be discriminatory. It noted that, even if the outstanding award were paid, Coutinho’s claim of victimisation would still be available to him.

The Court decided that, although other creditors do not have the benefit of questioning the non-payment of an award in this way, the Race Relations Act 1976 clearly affords special protection for those who have brought tribunal claims.

Additionally, even though he was no longer an employee, it was not the case that the failure to pay the award was unconnected with his employment.

Accordingly, Coutinho’s claim of victimisation could proceed to a tribunal hearing.