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Failure to pay tribunal award capable of being Victimisation

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[Thanks to Anya Palmer of Old Square Chambers for summarising this case]

In Rank Nemo (DMS) Ltd v Coutinho the Court of Appeal holds that an ex-employee is entitled to proceed with a claim for victimisation against a (new) ex-employer for failing to pay an award of £72,500 for race discrimination and TUPE unfair dismissal by a predecessor company.

The Respondent argued that this was not really a claim for victimisation at all, but an inappropriate attempt at enforcement in the wrong venue. The Claimant (in person) persuaded the Court of Appeal that this was not so. He does allege subjective discriminatory motives by the Respondent in failing to pay his award, pointing out that other creditors who have not done a protected act have been paid. As this was a preliminary challenge, the facts were assumed in his favour. The earlier case of D'Souza v Lambeth was distinguished because in that case the detriment was refusal to reinstate, for which the only remedy statute allows is further compensation.

Mummery LJ also called on Parliament to enact "some reasonably workable test for determining discrimination liability in the sensitive area of expired employment."