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An employment tribunal(ET)refused (on jurisdictional grounds) to allow the claimant to claim for victimisation after Rank failed to honour an unfair dismissal and race discrimination compensation award. The Claimant had been awarded compensation of over £72,000.

There had been unsuccessful appeals to the Employment Appeal Tribunal (EAT) by Vision (liability having transferred to Rank Nemo under Regulation 5(2) of the Transfer of Undertakings Regulations (TUPE). The ET agreed with the respondent relying on D’Souza v Lambeth LBC D’Souza where the House of Lords (HoL) rejected a claim of victimisation after the respondent failed to reinstate the claimant after winning his case for unfair dismissal, race discrimination and victimisation.

The ET stated that it had no jurisdiction to hear a claim of victimisation because it held the claim of victimisation only relied on the failure to pay an award. This was not related to the claimant's prior employ and therefore was not contrary to sections 4(2)(b) and (c) of the Race Relations Act 1976. The claimant's remedy was therefore not through the tribunal system but in applying for enforcement of the award through the county court.

The claimant disagreed with the respondent's arguments that he was solely a judgment creditor, claiming that the reason why he had not been paid was discriminatory in that he had been given less favourable treatment compared with other creditors.

The EAT decided that the case of D'Souza was not relevant as in D'Souza the claim was for reinstatement whereas here it was failure to pay.

Lord Mummery in the Court of Appeal (CA) said, "that (D'Souza ) case is clearly distinguishable (different to the present case) on the ground that the former employer's failure to reinstate as ordered has its own exclusive statutory remedy and that there is no other remedy such as compensation for victimisation.”

Mummery LJ set out why it was appropriate for the case to proceed: 30.“Discussion and conclusion 31.This is without doubt a novel claim. An understandable initial reaction is to question the necessity for victimisation proceedings in the circumstances of this case. Such a claim would not be available to an ordinary judgment creditor. There are available to the Claimant, as there are to other creditors who have had to pursue their cases to judgment, purpose-made procedures for the recovery of judgment debts. It is true that employees are given special statutory protection against victimisation by their employers, present and past. But what connection does this claim have with an employment relationship which terminated five years ago?

• It was found that there existed post-termination victimisation.
• Rank Nemo was liable through TUPE to pay compensation, replacing the former employer Vision, It incurred Vision's liabilities.
• There is an important distinction between an award of compensation and a order for reinstatement that has not been honoured.
• D'Souza was unable to claim for the failure to re-instate him because he had a specific statutory remedy for the failure to reinstate in the unfair dismissal legislation (1978 and 1996 Acts). The statutory remedy in D'Souzatherefore excluded the possibility of claiming victimisation on failure to reinstate.
• There respondent argued that the ET has no power to enforce its decisions so the claim should fail. The CA held however that as the action was not brought to enforce an ET judgment or a county court order but because there existed a discriminatory failure to comply with a judgment. The unlawfulness involving a " subjective reason for that conduct; a protected act in the form of the previous proceedings arising out of his employment; the alleged less favourable treatment of the Claimant, as compared with the treatment of other creditors"
• The right not to be victimised for doing a protected act was not excluded by legislation on the grounds that the claimant was a judgment creditor.

The CA argued that the claimant was entitled to enforce his judgment and bring proceedings for discrimination against the employer It "could, in principle, even survive the satisfaction of the judgment debt."

"Subject to any considerations of double recovery there might then be no reason, in principle, why the Claimant should not be able both to enforce the county court judgment and to recover damages for any loss of benefit or detriment suffered in consequence of victimisation.”

The case was remitted to a tribunal to decide on whether victimisation indeed occurred.

The CA also added an implied criticism for the state of the judicial system in the UK where "he (the claimant) has acted in person throughout. That is not easy. Nowadays it is not unusual. Citizens who are neither rich nor powerful find that they have been priced out of legal representation in the civil courts and tribunals...However, despite his lack of legal representation and an apparent inequality of arms, the Claimant has achieved considerable success on a point on which judicial opinion is not unanimous.

The transcript of this case can be found  Here