Over the last year or so the EAT has been grappling with the question of whether tribunals can apportion compensation between different respondents to a discrimination claim – for example between an employer and an individual employee accused of discrimination. In London Borough of Hackney v Sivanandan the Court of Appeal confirmed that there is no such power and that respondents are jointly and severally liable for any compensation awarded.
Hackney provided funding to an organisation called Hackney Action for Racial Equality (HARE). Alongside HARE employees, one of Hackney's employees sat on an interview panel that was found to have victimised the claimant. The claimant was awarded around £421,000 in compensation. In accordance with standard practice at that time, the Hackney employee (for whose actions Hackney was vicariously liable) was ordered to pay £1,250 plus interest. However, as HARE had by this time disbanded, the claimant tried to recover the remainder of the compensation award from Hackney. Hackney argued that its liability could not be greater than that of the employee for which it was vicariously liable.
The Court of Appeal confirmed the EAT's decision that tribunals do not have power to apportion liability between respondents who are found to have discriminated. This meant that Hackney was liable to the claimant for the full compensation award, despite the fact that its employee's "share" of the compensation had been assessed at a much lower level. Apportioning the employee's share in this way had been an error, and did not affect the liability of the other parties to the claim.
The decision may mean that we see an increase in the number of discrimination claims being brought against more than one respondent. This would give claimants a choice of which respondent to pursue for payment of any award.