What happens when an individual who has discriminated against a colleague is sued as well as the employer? This is a relatively common scenario but where the liability lies may surprise you.

A trend had developed in these cases where tribunals apportion a small amount of compensation to the individual, with the bulk of the award being borne by the employer. This was the way in which the employment tribunal in this case proceeded but that approach was rejected as being outside of the tribunal’s powers.

The Employment Appeal Tribunal and the Court of Appeal confirmed that there is no right to apportion liability between respondents where the damage caused by one respondent cannot be distinguished from the damage caused by another. Where the harm suffered is 'indivisible', the respondents will be jointly and severally liable for the entire award and the claimant will have the choice as to who to enforce the award against. If a claimant has a particular grudge against a colleague (likely in this type of case as there will of course have been a finding of discrimination) they may choose to enforce the award against the individual rather than the employer: they would also do that if the employer is insolvent. This means that individuals who have participated in discrimination could be personally liable for significant awards. Although they could apply for a contribution from the employer, that can be complex and expensive in itself if the employer is not willing to give it voluntarily.

This is an important decision even though the law on which it is based has been around for a while. It brings to the fore the fact that individuals joined in to these actions could find themselves on the hook for the full amount of any award. This is particularly concerning for HR who are or can often be joined into claims where they are alleged to have participated in the discrimination by, for example, not dealing with disciplinary or grievance procedures in a way that is to the total satisfaction of the Claimant. There will undoubtedly be arguments about what can be ‘divisible’ but that is scant consolation (and extremely difficult to predict the outcome of) for an individual potentially liable to a significant award.