The difficulties of enforcement, and the significant number of awards that remain unpaid, meant that this issue was one of those considered in the Taylor Review last year. The Review made a number of recommendations including a naming and shaming scheme for employers that do not pay up and that the process of recovery should be simplified without the need for additional court proceedings, form filling or fee payment. The UK Government has agreed in principle with these recommendations.
In AA v Secretary of State for Business, Energy and Industrial Strategy and the Commission for Equality and Human Rights (CEHR), the claimant had been unable to recover an award made to her by an Employment Tribunal in Glasgow. She petitioned the Court of Session arguing that, by failing to make statutory provision for the granting of diligence on the dependence (freezing of assets) by an Employment Tribunal, the UK is in breach of its Community law obligation to provide her with a remedy for her harassment claim that is compliant with the principles of effectiveness and equivalence. She sought compensation for that breach. The CEHR entered the petition procedure in support of the petitioner.
By way of background, the petitioner had successfully brought proceedings for harassment on the grounds of sex, race and religion and was awarded £75,000 in damages. Before she received payment of the award it came to light that her employer's business was to close and its funds were to transfer to another entity defeating the award that had been made to her. The EU principle of effectiveness is that procedural requirements for raising actions to enforce EU rights cannot be so excessively difficult as to render exercise of that right practically impossible. The principle of equivalence is that rules put in place to implement EU law should be no less favourable than those governing similar domestic actions.
The Court of Session dismissed the petition. The petitioner could have raised an action for diligence in the Sheriff Court or the Court of Session at the time she commenced proceedings in the Employment Tribunal. The fact that she had to raise those proceedings in a different court and incur some expense in doing so did not render exercise of her EU rights excessively difficult or impossible. The Court also rejected her argument that the principle of equivalence had been breached on the basis that interim protection was available to her (albeit by way of a separate action) whether she was raising a claim based on EU or domestic rights.
This decision does not sit comfortably with the recommendations of the Taylor Review. However, until some action is taken to implement those recommendations respondents to tribunal claims need to be aware that claimants may raise separate court actions to obtain security over the sums claimed.