Failure to pay tribunal award might amount to victimisation
In Rank Nemo (DMS) Ltd and ors v Coutinho, the Court of Appeal held that a former employee’s victimisation claim could be heard as the employer had failed to explain why it had not paid a tribunal award. If the reason for the non-payment was that the employer was penalising the ex-employee for pursuing a race discrimination claim, this would constitute post-employment victimisation.
After succeeding in automatic unfair dismissal and race discrimination claims, Mr Coutinho was awarded over £72,000 in compensation. He never received the money despite having obtained an enforcement order from Slough County Court. Mr Coutinho‘s subsequent claim that the failure to pay the award was an act of post-employment victimisation in breach of the Race Relations Act 1976 was rejected by a tribunal who decided that the issue was one of enforcement of the payment of an award, which it had no power to interfere with.
The EAT and now the Court of Appeal overturned the tribunal’s decision. The claim was not one based just on the failure to pay the award. The central issue was the reason why it had not been paid. Therefore the claim should proceed to a full hearing to determine whether the reason for the employer’s failure to pay the award was an act designed to penalise Mr Coutinho after he had left employment because his discrimination claim had been successful.
The case highlights how employers who do not pay discrimination awards could be liable for the original tribunal award and further damages for victimisation.
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