When an employee makes a complaint in respect of an alleged discriminatory act that occurs in the workplace, employee respondents can often find comfort in the principle of vicarious liability, ie the fact that the employer is generally responsible for actions carried out by its employees during the course of their employment. However, where individuals are specifically named by a claimant in a tribunal claim, they should be wary of recent case law which has addressed the question of the allocation of liability between respondents.
Until recently employment tribunals had developed a practice of apportioning liability between employer and employee respondents in discrimination claims. This meant that employers and named employees were each separately liable to a successful claimant for part of his or her compensation. It was relatively commonplace to hear, for example, that the employer would be liable for the majority of the employee's award, but that the employee respondent who carried out the act of discrimination must pay him or her a set lump sum of, say, £500.
However, in the cases of London Borough of Hackney v Sivanandan and others and Bungay and others v Saini and others, it was found that this was not correct – all awards made by an employment tribunal should be joint and several rather than being apportioned in this way. This means that all respondents, whether employers or employees, are jointly liable to the claimant and the claimant may, therefore, enforce the payment in full against any of them. Further, if the claimant does enforce payment in full from the employer (which he or she often will for practical reasons), the employer can then seek a contribution from the other respondent(s).
In Brennan and others v Sunderland City Council and others, Sunderland City Council sought to seek a contribution from the other respondents for the full amount payable to the employees in the event that it was found liable. It said that it would do this under the Civil Liability Contribution Act. However, the Employment Appeal Tribunal ('EAT') found that employment tribunals do not have jurisdiction to hear a contribution claim between respondents. Discrimination legislation allows the tribunal to hear a complaint by one person that another had committed an act of discrimination or harassment against them, but not a claim that another party should be held liable for the discrimination. Whilst this case involved a claim under the Sex Discrimination Act 1975, the EAT said it would be 'surprising' if the position were any different under current discrimination legislation, namely the Equality Act 2010.
So, as the situation stands, all awards made by an employment tribunal must be joint and several. This is worrying news for named individual respondents, who could find themselves jointly responsible for significant sums. Directors, managers and other senior staff therefore need to be more careful than ever to avoid any unlawful breach of discrimination legislation