Tagged: enforcement

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Research into enforcement of employment tribunal awards in England and Wales

The Ministry of Justice has just published its research into employment tribunal awards and whether they are being paid. They surveyed 1,002 successful claimants.

It makes interesting, if depressing, reading.

39% had been paid nothing. 8% had been paid something, but less than the amount awarded. Only 53% had been paid in full.

This is a grim statistic, but it is worth putting it in context. Of those who had not been paid, only 36% had gone to the county court. In other words, nearly two thirds of those who had not been paid had failed to take enforcement steps.

Enforcement is not a silver bullet. It can be frustrating and is not always successful. But, if you have got through the tribunal process successfully, you should not give up lightly. The hardest work is behind you.

‘How to start enforcing a tribunal award’ explains how to begin.

Ministry of Justice Research Series 9/09

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Half a loaf

Quite often after a settlement or tribunal award the respondent will send only part of the amount due.

Normally, although not always, they will offer some sort of excuse for this. These range from the really rather plausible through the quite possible to the downright unlikely. Depending on the quality of the excuse, you may want to consider starting to enforce the award.

But whatever else you do, pocket what is actually on the table. If it is a cheque, pay it in. If it is cash or a bank transfer there is no need to keep it separate to other money or avoid spending it.

People are often worried about this. They fear that, by paying in a cheque for half the amount, they may lose their entitlement to the other half. If the respondent is trying to sell them on payment by instalments they want to be sure that they are not seen as accepting that.

This is just not how things work. As a practical matter, it may be sensible to write a letter making your position clear, since it may prevent the respondent getting confused. But as a matter of law taking part of what you are owed does not change your entitlement to the rest of the money, or commit you to anything that the respondent is proposing.

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How to start enforcing a tribunal award

Enforcement is often seen as a complex and legalistic process. It moves from the tribunal to the civil courts, and has all sorts of hurdles to overcome. If somebody just refuses to pay an award, it can be difficult and expensive to force them into it. Normally it is equally annoying for the erring respondent, who has to put up with court orders, bailiffs and applications to make them bankrupt, but some respondents seem determined to play brinkmanship.

Having said that, the first stage of enforcing an award is relatively simple and is often effective on its own. So do not be immediately discouraged.

Step 0

The first thing to do if an award is not paid is to contact the respondent or their representative and ask them to pay. There is a tendency, by the end of litigation, to have reached such a sour view of the ex-employer that you interpret non-payment in the worst possible light. But, quite often, there is nothing very sinister going on. Inefficiency and incompetence are at least as common as malice. In these cases a firm phone call or letter saying “I’m sure you were just about to pay, weren’t you?” may be enough.

Even when you are sure that the respondent is going to be difficult, it is worth going through this stage. It costs little and may give you the moral high ground later.

The Form

Fill in form N322A.

This is a one page form. You will need to put in details of yourself, the respondent and the tribunal award.

The potentially difficult bit is calculating interest, but you should have received information about this with your judgment.

When you have completed the form, make a photocopy of your judgment and put it with the form.

Court Fees

At the time of writing, the fee for registering a tribunal judgment is £35. This is added to the judgment debt, so you should get it back in the end.

You can check the on the Court Service website. Search for ‘Court Fees’ in the ‘Form Title / Leaflet Title’ search box. The relevant guidance is called ‘County Court Fees – Including fees for family cases’.

If you are on benefits you may not need to pay court fees. The above search should also locate guidance called ‘Court fees do you have to pay them?’. Read this if you are unsure.

The Court

The most complicated part of this process is finding the right county court to send the application to. Awards should be enforced in the county court that covers the area where the respondent is in business. This is not particularly obvious or intuitive. If you send the form to the wrong court, they will send it back.

The easiest way to find out where to send it is to do a postcode search on the Court Service’s Court Finder. This should give you one, or possibly two, relevant courts. It is worth ringing the court up to check that you are sending the form to the right place.

The Result

A couple of weeks after you send the form in you should get documents back from the court, confirming that the judgment has been registered.

At this point you have a County Court Judgment against your respondent.

In many cases, this is enough to convince the employer to pay up. County Court Judgments seem to be real to people in ways that tribunal awards are not. This is, at least to some extent, irrational, but it is a common view. The reason it is not entirely irrational is that CCJs show up on credit tests and have to be declared in various circumstance, while tribunal awards, as a rule, do not.

The other impact is that registering a judgment is a strong declaration of intent that the claimant is not going away quietly.

Further steps

Once you have a CCJ you can access the rest of the civil enforcement system. This is the point at which things do get more complicated and difficult – for both sides.

A good starting point is the Court Service’s leaflet I have a judgment but the defendant hasn’t paid.

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‘Justice Denied’

Citizen’s Advice has published its latest report on the non-payment of awards by employers. Justice Denied, is an interesting, but depressing, account of the problem.

The report concludes that approximately one in ten tribunal awards is not paid by the respondent. They estimate that, in 2007/08 CABs dealt with about £4.5 million in unpaid judgments. The total UK figure, of course, will be much higher.

Citizen’s Advice also criticises the enforcement process. Since the tribunal has no enforcement powers, awards must be registered in the County Court. Then claimants are presented with a confusing and complex system of bailiffs, charging orders, bankruptcy applications and third-party debt orders. This is plainly unsatisfactory.

Unfortunately the proposed solution – that the government step in to pay all tribunal awards initially, before enforcing against the respondent – has a snowball’s chance in hell of coming into reality.

Justice Denied