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Victimisation claim

United Kingdom
Written by
Lewis Silkin, widely recognised as the UK’s leading specialist employment law practice.
This article claims it is important for UK employers to ensure they pay discrimination damages on time and explains why

A Court of Appeal judgment in Rank Nemo (DMS) Ltd and others v Coutinho has held that an Employment Tribunal has jurisdiction to consider a victimisation claim (a type of discrimination claim) based on the employer’s failure to pay race discrimination damages previously awarded by the Employment Tribunal.

Mr Coutinho was made redundant when his employer’s business transferred to Rank Nemo (DMS) Ltd.  He brought proceedings for unfair dismissal and race discrimination and the Tribunal awarded him £72,000 in damages.  When Rank Nemo did not pay him, Mr Coutinho obtained a county court judgment for the amount as a debt.  Other Rank Nemo creditors were paid but Rank Nemo still did not pay Mr Coutinho.  Mr Coutinho therefore brought a further claim asserting that Rank Nemo’s failure to pay the compensation constituted a type of unlawful discrimination known as victimisation. Victimisation occurs when an individual is treated less favourably because he or she has brought discrimination proceedings or otherwise alleged that discrimination has occurred. The preliminary issue arose as to whether the Employment Tribunal had jurisdiction to hear Mr Coutinho’s victimisation claim. At first instance, the Tribunal held that it did not have jurisdiction, because the claim centred upon enforcement of a Tribunal judgment and the Tribunal has no power to enforce its own judgments. The Employment Appeal Tribunal (EAT) disagreed, overturning the Tribunal’s decision, and the case was appealed again to the Court of Appeal.

The Court of Appeal agreed with the EAT. Rank Nemo’s main argument had been that an earlier House of Lords case – D’Souza v Lambeth LBC – had concluded that failure to reinstate an employee did not constitute victimisation. Rank Nemo said that the same principle should apply in this case, because both cases related to failure to comply with the Employment Tribunal’s order. The Court of Appeal disagreed. It found there was a distinction between D’Souza and Mr Coutinho’s case. D’Souza involved failure to reinstate, and there is an express remedy provided by statute when an employer refuses to reinstate. But there is no such express statutory remedy when an employer fails to pay judgment damages. The Court of Appeal also did not agree that Mr Coutinho’s victimisation action was brought merely to enforce a Tribunal judgment. It considered the claim had been brought because Rank Nemo’s unexplained conduct in not complying with the judgment (especially given it had paid other creditors) could amount to additional discriminatory conduct. The Court of Appeal did not decide that there was victimisation, but it did consider that there should be further investigation into the facts. Mr Coutinho’s victimisation claim was therefore referred back to the Tribunal for consideration.

The effect of this decision is that it is possible to bring a further discrimination claim if discrimination damages are not paid on time (or at all). This could increase the total amount of damages payable.  Employers should therefore ensure they pay on time – or face potential further consequences.

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