The Court of Appeal holds that respondents who do not pay tribunal compensation could face a further claim of victimisation.
The Facts

In Rank Nemo (DMS) Ltd & others v Coutinho, Mr Coutinho was made redundant in 2004 from a company called VIS Limited. VIS was later taken over by the respondents, Rank Nemo. Rank Nemo were liable under TUPE for Mr Coutinho’s dismissal. Mr Coutinho brought claims for automatic unfair dismissal and race discrimination in relation to his redundancy and was awarded £72k. Rank Nemo did not pay the award. Mr Coutinho sought to enforce the judgment through the county count; however, still no payment was made. Mr Coutinho then made a fresh tribunal application on the basis that the non-payment was an act of post-employment racial victimisation.

Initially a employment tribunal would not hear the claimant’s fresh claim as it said it was concerned with enforcement and not a claim for victimisation. The EAT disagreed and said that the question of non-payment as an act of victimisation could be heard by an employment tribunal. The respondents appealed.
The Decision

The Court of Appeal held that a tribunal has jurisdiction to hear a post-termination victimisation claim based on the non-payment of a tribunal award. The Court saw no reason why, if the victimisation claim were proved, the claimant could not receive the original award of damages plus any new award of damages in respect of victimisation – provided of course, a claimant did not receive double recovery. Also, even if the respondents suddenly paid the judgement debt, Mr Coutinho would continue to have a victimisation claim given the fact it had not been paid.

The claim will now proceed to a full hearing where the tribunal will decide whether there is a “sufficiently substantial close or proximate connection” between the respondent’s failure to honour the compensation award and Mr Coutinho’s expired employment to allow a claim for post-employment victimisation.
Practice Points

Employers should be wary of victimisation claims. Victimisation claims are often referred to as ‘retaliation’ claims. It is a claim whereby a claimant seeks to argue that the employer has only acted in the way it has because they have brought a claim or raised an issue of discrimination. Nobody likes to be branded a ‘sexist’ or a ‘racist’ but one must be very careful in their dealings with staff who have made such claims and think carefully about whether actions could be viewed as retaliation. For example, not providing a reference, failing to promote or give a pay rise.

Often the initial act complained of in not an act of discrimination; however, the way an employer handles a complaint thereafter or treats an employee often gives rise to a victimisation claim thereby giving a claimant a second bite of the cherry. Test out any management decisions to see if what the manager is doing is legitimate or tainted with retaliation.