Background/Facts

“Victimisation” is a key concept in employment discrimination law. This is because employees may be reluctant to voice concerns under the discrimination legislation for fear of reprisals from unscrupulous employers. They are therefore protected from being victimised by employers if they do voice concerns.

If an employee takes action under any of the discrimination legislation, gives evidence or information in relation to any proceedings under that legislation, or alleges the employer committed an act which would amount to a contravention of the discrimination legislation, then they are protected against any less favourable treatment by the employer.

In this case the Claimant, who was of Asian origin, was made redundant in 2004. In 2006 Coutinho won claims of race discrimination and also automatic unfair dismissal in relation to his redundancy. The Tribunal awarded him over £72,000 in compensation. Despite an order from the County Court to pay the sum the Respondent employer did not do so.

Decision/Comment

The Court of Appeal has ruled that in the circumstances set out above, it may be possible to claim victimisation. Post termination discrimination can amount to victimisation if the conduct has a sufficiently close connection with the employment.  The Court has effectively said this test may be satisfied where there is a refusal to pay a Tribunal award for unfair dismissal and discrimination in retaliation for an employee’s prior discrimination claim. This case is in line with the Government’s recent announcement that it intends to enhance powers of enforcement against employers who do not pay awards made against them. There is therefore a risk of a further claim for victimisation (with accompanying costs) if the employer decides not to pay up.