The Court of Appeal recently heard a case where a former employee complained that the employer's failure to pay up after it lost a claim of race discrimination (and unfair dismissal) was itself an act of discrimination - specifically, victimisation (Rank Nemo (DMS) Ltd & Others v Coutinho).

In order to make out a claim of victimisation, it must be shown that one person treats another person less favourably because that person has done or intends to do a "protected act". A "protected act" includes bringing discrimination proceedings, giving evidence or information in connection with discrimination proceedings, or making an allegation of unlawful discrimination.

The "protected act" that this Claimant relied on was his bringing of a race discrimination claim in the first place. He described the non-payment as "retaliation" for his having brought and won a discrimination claim.

The Tribunal initially rejected the claim, saying that it did not fall within its jurisdiction, as employment tribunals do not have the power to enforce unpaid awards.

The Court of Appeal thought otherwise. Although it was correct that unpaid awards could not be enforced in an employment tribunal, this did not necessarily mean that an employment tribunal could not investigate the reasons for the non-payment. The answer to the question of whether non-payment of a tribunal award could be a further act of discrimination, and capable of determination before an employment tribunal, was therefore "yes".

This is not to say that the Claimant's allegation of victimisation was successful. The issue before the Court of Appeal was simply whether the employment tribunal had been wrong to reject the claim without an investigation of the facts and an analysis of the law. The Court of Appeal found that it had been wrong to so do, and it was determined that the matter be sent back to a different employment tribunal for proper determination.

The message to employers is to ensure that compensation is paid before the deadline set out in the Tribunal or Court Order! Not only is a county court debt judgment an unwelcome prospect, but for discrimination awards, there now appears to be the additional risk of a further discrimination claim being made.