Upholding the rights of a woman entitled to her Employment Tribunal award

Can a Sheriff Court grant a warrant for inhibition and arrestment on the dependence to assist an Employment Tribunal claimant to enforce an award? If so, is this an effective remedy in EU and human rights law?

In 2016, an employment tribunal awarded a woman around £75,000 after it found she had been harassed by her employer on the grounds of sex and religion.

The woman (Ms Anwar) sought to enforce the award, however the financial settlement was never paid and Ms Anwar understands that the funds were moved from her employer’s bank account before her lawyer could take action to recover the money.

Ms Anwar raised a Judicial Review against the UK Government. She argued that the current system of enforcement of awards does not offer an effective remedy to claimants. This is because the Employment Tribunal does not have the power to freeze an employer’s funds.

It means that around half of those who are given a financial award never get the money.

The Human Rights Act says that anyone whose rights are infringed should have access to a remedy, and Article 6 places a positive obligation on member states to put in place an effective system of enforcement of remedies for civil claims.

We were concerned that the failure to enforce employment tribunal awards is a breach of this.

It cannot be understated how important it is to have an accessible, effective system of enforcement of Employment Tribunal awards to minimise the additional and unnecessary stress involved in enforcing an award.

We intervened in Ms Anwar’s case as we believe that the current difficulties faced by successful claimants in employment cases is unacceptable.

We intervened by sharing with the court a survey suggesting that only 41% of  Scottish claimants reported being paid in full, with 46% reporting no payment at all.

We added a human rights lens to the legal arguments and shared documents illustrating the real world experience of claimants trying to enforce Employment Tribunal awards, to support the view that the current system doesn’t provide the right to an effective remedy.

The Court found that the Court of Session and the sheriff court have power, in certain circumstances, to grant a warrant for diligence on the dependence to provide interim security for a claim for discrimination or harassment which a worker is claiming in the Employment Tribunal.  

The Court agreed that the statistics which the Commission presented to the Court are disappointing and noted that the UK Government has recognised that this is an unsatisfactory state of affairs.

However the Court held that to establish a breach of EU law it must show that having to take these extra steps in the sheriff court rather than in an Employment Tribunal makes the exercise of her rights ‘practically impossible or excessively difficult’.

The Court did not accept that had been shown.

This case highlighted the difficulty many people experience when trying to secure their awarded damages after a successful Employment Tribunal.

We have used this case as an opportunity to urge the UK Government to address the issue, review the system of enforcement and change the system to ensure it's effective for all.