Failure to pay tribunal award may amount to victimisation

The Court of Appeal has confirmed that a former employee can proceed with a victimisation claim against a former employer for its failure to pay a tribunal award.

In Rank Nemo (DS) Ltd and others v Coutinho, Coutinho was made redundant by Vision Information Services (UK) Ltd in 2004. Later that year, the undertaking in which he had been employed was transferred to RN Ltd. In 2006, he won claims of automatic unfair dismissal and race discrimination in relation to his redundancy and was awarded compensation. Liability for the award passed to RN Ltd by virtue of the Transfer of Undertakings (Protection of Employment) Regulations 2006. Despite obtaining a county court order, Coutinho did not receive any money. He subsequently claimed that RN Ltd's failure to pay the award was an act of victimisation contrary to the Race Relations Act 1976. The tribunal considered that this was a question of enforcement which it had no power to interfere with. The matter reached the Court of Appeal.

The Court of Appeal confirmed that the tribunal did have jurisdiction to accept Coutinho's claim. Although RN Ltd argued that the claim should fail on the ground that the tribunal has no power to enforce an unpaid award, the Court rejected this argument. The action was not brought to enforce the award. The Court also noted that the right not to be victimised for doing a protected act was not excluded by the legislation just because the employee is also a judgment creditor with rights to invoke enforcement procedures. It rejected the proposition that Coutinho, as a judgment creditor, had severed all possible links with his past employment and that he has lost his statutory protection from victimisation. RN Ltd's failure to pay the judgment debt was only one ingredient of Coutinho's right of action. The action could, in principle, continue even if the debt was paid.

The case will now continue to a full hearing where the tribunal will investigate the facts to establish whether there is a sufficiently substantial close or proximate connection between RN Ltd's failure to pay the award and Coutinho's expired employment to satisfy the requirements of a post-termination victimisation claim. Subject to considerations of double recovery, the Court noted that there was no reason in principle why Coutinho should not be able both to enforce the tribunal award and recover damages for victimisation.

It is also worth noting, as reported in a previous update, that since 1 April 2009, employers who fail to pay tribunal awards will now be "named and shamed" on the Register of Judgments, Orders and Fines once enforcement proceedings are brought against them in a county court. 

Paternity leave extension plans on hold

It has been reported that plans to extend paternity leave, which would allow fathers to take six months paternity leave and enable parents to share leave, have been put on hold. Reports state that the costs and benefits of the proposals are being reviewed in light of the current economic climate.

The reports have been welcomed by the Chartered Institute of Personnel and Development (CIPD). Mike Emmott, Employee Relations Adviser at the CIPD, said:

"While pleased that this particular proposal has been shelved, we do not believe it is sustainable for this issue to be kicked into the long grass. There is certain to be growing pressure for the issue of paternity leave to be addressed. The recession-inspired shelving of the existing proposals must be used by politicians and business leaders to come up with workable proposals that balance competing demands in a way that works for business."