Veitch Penny LLP - Exeter | Crediton, Devon

Case

Rank Nemo (DMS) Ltd & others –v- Coutinho
Court of Appeal – 20 May 2009

Issues

(1) Unfair dismissal
(2) Race discrimination
(3) Post termination victimisation

Facts

Mr Coutinho was employed by Vision Information Services (UK) until he was made redundant in 2004. In July of that year the company was transferred into the company which became known as Rank Nemo (DMS) Ltd, the Respondent in this action.

Mr Coutinho began proceedings at the Employment Tribunal, making a claim of automatic unfair dismissal on the basis that he had been dismissed for a reason relating to the Transfer of Undertakings (Protection of Employment) Regulations 1981 (“the TUPE Regulations”). He also brought a claim of race discrimination. He was successful and was awarded £72,000 in compensation. According to the TUPE Regulations liability to pay this award transferred to the Respondent company. Ultimately, no payment was received from the company and Mr Coutinho obtained a County Court Judgment against the company based on their failure to pay his award which, by then, amounted to £72,508.75.

Mr Coutinho decided not to commence enforcement proceedings, instead lodging a further Employment Tribunal claim alleging that the failure to pay the compensation constituted an act of victimisation under the Race Relations Act 1976.

The Employment Tribunal refused to accept the claim, taking the view that the issue was one of enforcement which the Tribunal did not have power to deal with. Mr Coutinho appealed this decision to the Employment Appeal Tribunal. Subsequently, Rank Nemo and the other Respondents named in the new claim form, appealed to the Court of Appeal.

On appeal, the company argued that Mr Coutinho’s claim was simply a complaint about enforcement and the Tribunal was therefore correct to refuse to accept the claim. They further argued that there could be no act of victimisation since the allegation, namely the act of non-payment of the award, was not sufficiently connected to the original employment relationship.

Mr Coutinho countered that his claim of victimisation could not be an attempt at enforcement because his success with his new claim would not provide him with any means of obtaining the money he was already owed. Instead, if he was successful, then a further award of compensation would be made. He also submitted that the connection with his previous employment was in the form of retaliation on the part of the company following his success with his earlier claim.

Decision

The Court of Appeal considered the claim and found in favour of Mr Coutinho. Whilst the claim was an unusual one, it would be premature to reject the claim without hearing all the evidence.

Comments

The claim will now have to proceed to a full hearing in order to determine whether or not Rank Nemo may be found liable for victimisation. This will, of course, depend on the evidence to be heard, as ultimately there could be many reasons why the Order for Compensation had not been complied with which are entirely separate to Mr Coutinho having brought an earlier claim. It is notable however that Mummery LJ commented on the general lack of respect for Tribunal awards and that non-payment was not an infrequent occurrence. This judgment coincides with the recent change to the law as of 1 April 2009 which enables Tribunal awards to be enforced without having to be registered in the county court first. Judgments will also be entered on the County Court Register of Judgments.