Coutinho v Rank Nemo (DMS) Ltd and Others
| Jurisdiction | England & Wales |
| Judge | Lord Justice Mummery,Lord Justice Rix,Lord Justice Moses |
| Judgment Date | 20 May 2009 |
| Neutral Citation | [2009] EWCA Civ 454 |
| Docket Number | Case No: A2/2008/2385 |
| Court | Court of Appeal (Civil Division) |
| Date | 20 May 2009 |
[2009] EWCA Civ 454
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
HHJ McMULLEN QC
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Mummery
Lord Justice Rix and
Lord Justice Moses
Case No: A2/2008/2385
UKEAT/0315/08/LA
MR NOEL DILWORTH (instructed by Goodman Derrick LLP) for the Appellant
MR LANCE COUTINHO the Respondent appeared in person
Hearing date: 20 th March 2009
Lord Justice Mummery:
Introductory
What protection does the law extend to an ex-employee against acts of discrimination and victimisation by a former employer after the termination of their employment relationship? The wealth and variety of judicial opinion in the Rhys–Harper group of appeals are evidence of the difficulties in settling on a single test: see Relaxion Group plc v. Rhys-Harper; D'Souza v. Lambeth LBC; Jones v. 3M Healthcare and other appeals [2003] ICR 867, [2003] UKHL 33. Parliament, after relevant consultation on the different tests in Rhys-Harper, needs to enact just one reasonably workable test for determining discrimination liability in the sensitive area of expired employment.
Unless that is done soon the tribunals and courts will regularly face the difficulties that confronted the Court of Appeal in Woodward v. Abbey National plc [2006] ICR 1436. Ward LJ posed the question (at paragraph 23) “What did Rhys-Harper decide?” He proceeded, with judicial caution, through a valuable analysis of the five opinions to some conclusions (at paragraphs 49 to 53) and ultimately to a declaration of surrender (at paragraph 69), in which I would also join, that it was not “right or proper for us at this stage, and in the absence of argument about it, to spell out exactly what test their Lordships have laid down.”
Is Mr Coutinho (the Claimant) entitled to claim the post-termination protection sought by him in this case? The question is put that way because the issue is whether his case should be accepted for adjudication at all. He 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. There is the safety net of pro bono advice and advocacy services on which the civil courts and their users are increasingly reliant. The services available through the Citizens' Advice Bureaux, Law Centres and the Solicitors' and Bar Pro Bono Schemes are much in demand. 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 context of the case is an unexplained failure to honour an employment tribunal award of compensation for unfair dismissal and unlawful racial discrimination (Mr Coutinho is British Asian.) This is not an isolated instance of an employer contesting a case in the employment tribunal system, but then, having lost, failing to respect the legal authority of the system of adjudication in which he has participated. After we had reserved judgment the Justice Minister issued a statement (unconnected with this particular case) proposing to “name and shame” the culprits by entering employment tribunal awards in the Register of Judgments, which is open to public inspection. It is not for a court of justice to “name and shame” in this way. Its only function in this appeal is to decide a cold, dry jurisdictional question: did the employment tribunal (ET) err in law in holding that it had no jurisdiction to entertain the claim for victimisation of the Claimant against a party which was bound by the ET award, but failed to honour it?
Background
The Claimant worked for Vision Information Services (UK) Limited (Vision) as a project leader from January 1997 until he was made redundant in March 2004. In July 2004 the undertaking in which he had been employed was transferred to the appellant, Deluxe Media Services Limited, now called Rank Nemo (DMS) Limited (Rank Nemo).
The Claimant took his case of automatic unfair dismissal and race discrimination to the employment tribunal (ET), which, for reasons given in judgments of 6 June 2006 and 5 October 2006, awarded him compensation totalling over £72,000. There were unsuccessful appeals to the Employment Appeal Tribunal (EAT) (1) by Vision on liability and (2) by the Claimant on the amount of compensation.
Liability for the award had passed to Rank Nemo by virtue of Regulation 5(2) of the Transfer of Undertakings Regulations (TUPE.) The ET held that the dismissal by Vision was automatically unfair for a TUPE-transfer related reason: see Regulation 8(1) TUPE. The award was not honoured, even after the Claimant obtained an order in the Slough County Court on 15 December 2006 for the total sum of £72,508.75. A county court judgment was required, as the ETs have no powers to enforce their own judgments. The main reasons advanced by Rank Nemo for contesting this victimisation claim in the ET, the EAT and in this court are that (1) the Claimant relies on enforcement powers which the ET does not possess and (2) his claim is not linked to his former employment. As it relies only on the fact of non-payment of the award, the claim is outside the jurisdiction of the ET and it does not constitute the statutory tort of victimisation contrary to sections 4(2)(b) and (c) of the Race Relations Act 1976 (the 1976 Act).
On 30 April 2008 the Claimant presented a complaint to the ET against Rank Nemo seeking redress for victimisation. A number of individual respondents were also joined. They are accused of aiding the victimisation of the Claimant by Rank Nemo, as they were responsible for its conduct.
On 2 May 2008 the ET decided that the victimisation claim could not be accepted. It held that it had no jurisdiction to consider it and said-
“It is a question of enforcement which is not a matter which the employment tribunal has power to interfere with. Any potential victimisation claim would have to flow on link between the bringing of the claim and the less favourable treatment.”
On 20 May 2008 the ET refused the Claimant's application for a review of the decision.
This appeal, brought with permission granted by Pill LJ on 18 December 2008, is from the decision of the EAT (HHJ McMullen QC), which allowed his appeal on 16 September 2008 concluding (paragraph 24) that
“….this case cries out for determination on the facts rather than for it to be stopped even before a strike out is reached.”
The rival arguments are quite simple. Rank Nemo's case is that in substance the claim of victimisation based on detriment or deprivation of a benefit by less favourable treatment consists of nothing more than an allegation that it has not honoured the ET award or satisfied the county court judgment. It was open to the Claimant to enforce the county court judgment by invoking the legal procedures available to all judgment creditors. The ET is not an available forum for the enforcement of the county court judgment either directly or indirectly through victimisation proceedings.
Further there has been no victimisation contrary to the 1976 Act. The treatment which the Claimant alleges is not based on a current employment relationship, nor is it sufficiently proximate to or closely connected with a past employment relationship and the loss of benefit alleged cannot be regarded as an instance, incident or benefit of that relationship for the purposes of a victimisation claim. Putting it another way the Claimant is a judgment creditor who has chosen not to enforce the benefit of his judgment, rather than an ex-employee with a justiciable post-termination discrimination complaint whether based on the loss of an employment benefit or on detriment. Their Lordships opinions in D'Souza (see above and below) are cited in support of those contentions.
The Claimant's response is that none of this begins to answer his claim. He does not in these proceedings invoke any jurisdiction to enforce the ET award or the county court order. He accepts that the ET has no enforcement powers. His claim rests not so much on the fact of an unsatisfied judgment as on the reason why and the circumstances in which the judgment debt has not been paid, in particular the unexplained less favourable treatment of him when compared with the other creditors who have not done a protected act and whom Rank Nemo have paid. It is premature, he says, to reject his claim at this stage on jurisdictional grounds. The facts of a prima facie justiciable claim should proceed to full investigation by the ET.
The Claimant strongly disputes the contention that his claim has no link with his past employment. In the previous ET proceedings he established that he was the victim of discrimination in his employment. In the new proceedings he alleges that this discrimination continues in the form of detrimental and less favourable treatment for what he did in seeking to claim his employment rights against his former employer. The Claimant described Rank Nemo's conduct as “retaliation” for bringing and winning his discrimination claim.
The law
s 15(1) Employment Tribunals Act 1996 provides that
“any sum payable in pursuance of a decision of an employment tribunal in England and Wales which has been registered in accordance with employment tribunal procedure regulations shall, if a county court so orders, be recoverable by execution issued from...
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