Employers should be aware that following this ruling, if they evade their obligations to pay tribunal awards, they could now face fresh victimisation claims where the reason for the non-payment of the award is connected to previous discrimination proceedings.
If a victimisation claim is successful in these circumstances, this could give rise to additional financial liability over and above the value of the award.
Since 1 April 2009, the government has been clamping down on employers that disregard tribunal rulings, and those that fail to pay tribunal awards will be publicly named and shamed. Defaulting employers' names will be entered onto the Register of Judgments once the claimant has lodged the decision at court for enforcement. The government has also begun discussions to develop a service whereby creditors will be able to commission a High Court enforcement officer to enforce their award or out-of-court settlement as soon as the defaulting party fails to pay the sum due.
What you should do
If your employer is unlucky enough to face a tribunal award, arrangements should be put in place for the payment to be made at the earliest opportunity (but in any event before the 42-day time limit to pay a tribunal award expires, after which interest starts to accrue) to avoid the risk of fresh victimisation claims being brought.
The Court of Appeal has held that the failure to pay a tribunal award for discrimination could in itself give rise to a separate claim for victimisation where the reason for the non-payment was related to the claimant having brought discrimination proceedings initially.
Lance Coutinho was an IT specialist of Asian origin. He suffered race discrimination and was automatically unfairly dismissed in connection with a TUPE transfer from his then employer, Vision, to Rank in 2004. He was awarded £72,000. The liability transferred to Rank under the provisions of TUPE but Rank refused to pay the award, even after Coutinho obtained a County Court Judgment (CCJ) to enforce it in 2006.
Coutinho brought a new claim against Rank, arguing that the failure to pay the award amounted to victimisation. Victimisation is a stand-alone form of discrimination that involves a person being treated less favourably as a result of carrying out a "protected act", which includes, among other things, having brought a discrimination claim.