The Employment Appeal Tribunal has recently considered the issue of apportionment of compensation between multiple Respondents and has held that Respondents will usually be jointly and severally liable for any compensation awarded, giving the Claimant the ability to recover the whole of the awarded sum against any of the Respondents. Apportionment of compensation cannot be carried out so as to limit the liability of any of the Respondents to the Claimant.
In the case of Sivanandan v London Borough of Hackney and others, the Claimant had applied for two separate positions with Hackney Action for Racial Equality (“HARE”), an organisation largely funded by and with a very close working relationship with the Council. After attending interviews for both roles, the Claimant was advised she had been unsuccessful with both applications. She therefore raised claims of sex and race discrimination in respect of her non-appointment.
Her claim identified HARE, its Executive Committee and its full-time Director, the members of the interview panels which included one employee of Hackney Council (Ms White), and the Council itself, as Respondents.
Ms Sivanandan was successful with her claims of discrimination and the Tribunal then turned to consider the issue of compensation. It held that the liability of the Council employee, Ms White, should be limited to the sum of £1,250 plus interest. The Tribunal then found that, whilst it was entitled to apportion liability between the remaining Respondents, having regard to the extent of each party’s responsibility for the damage caused, it would not be just or equitable to apportion liability in this case and therefore ordered that the remaining Respondents be jointly and severally liable to the Claimant for the compensation sum of £421,415.
The Council appealed against the Tribunal’s decision.
The EAT observed that, whilst apportionment of compensation as between Respondents is possible in respect of compensation awarded for discrimination, this only applies in two situations:
- Firstly, it can occur between the Respondents themselves without impacting on the liability of any particular Respondent to the Claimant. Therefore, in this case, the Claimant could potentially seek enforcement of the full award against the Council alone and the Council would be responsible for this full amount. However, the Council could then seek to claim contributions from the remaining Respondents in whatever proportions deemed just and equitable by a court.
- The second limited situation is where the injuries caused by different acts of discrimination can be properly attributed to each particular Respondent. In such a situation it would be appropriate to apportion responsibility for the damage caused by each Respondent.
The EAT held that, outside of these two exceptions, neither of which applied to the facts of this case, a Tribunal has no discretion to apportion compensation and therefore the EAT held that, although the reasoning for its decision had been incorrect, the Tribunal had been right to find that all Respondents should be jointly and severally liable for the compensation awarded.
Under the anti-discrimination legislation in the UK, it is possible for claimants to bring proceedings against individuals as well as their employers. This case serves as a reminder that the consequences to individual managers and employees of being found to have committed an act of discrimination can potentially be very expensive indeed.