Joint and several liability in discrimination cases
Where there are multiple Respondents to a discrimination claim, there has been some confusion as to whether and how liability for any compensation can be apportioned between them.
The issue has now been considered by the Court of Appeal in the case of London Borough of Hackney v Sivanandan (2013) EWCA Civ 22.
The facts of the case leading to appeal are complex and involved a succession hearings over many years.
Ms Sivanandan brought claims of discrimination and victimisation arising from her non-appointment to two posts with Hackney Action for Racial Equality (HARE). She named several respondents, including HARE itself, members of its Executive Committee, Ms White (who was employed by Hackney Council to assist HARE and was involved in the job interviews) and Hackney Council (on the basis that it was vicariously liable for Ms White (“W”).
The Tribunal found that all of the respondents had unlawfully victimised the claimant. The remedy against W was dealt with separately and an injury to feelings award of less than £2,000 was awarded against her to be paid to Ms Sivanandan. At a second remedy hearing the Tribunal made an award in excess of £420,000 against the remaining respondents. These respondents were jointly and severally liable for the award, meaning Ms Sivananden could pursue any of the respondents for the full amount.
EAT rules on joint liability
The Council appealed to the Employment Appeal Tribunal (EAT). The main point argued on behalf of the Council was that the Tribunal should have apportioned the award of £420,000, as between the Council and the other respondents instead of making them jointly and severally liable. It was argued in the EAT that the Tribunal should have awarded different amounts of compensation according to the relative degrees of responsibility for the loss suffered by the Claimant in consequence of the discrimination. The Council appealed against the joint and several nature of the award made against it and the other respondents but did not appeal in relation to the amount of the award.
The EAT rejected the Council's argument of apportionment as it found that the Tribunal had no power to apportion liability. The reason for its conclusion is that it is well established that compensation for discrimination must be calculated in accordance with the law of tort. Applying the usual tortious principles on joint and several liability this means that where more than one person has participated in the same act of unlawful discrimination or has contributed to the same loss by different acts of discrimination then the damage is “indivisible” and each of the discriminators is liable for the whole of that damage.
In reaching this conclusion the EAT acknowledged that the practice of many Tribunals, for years, had been to apportion liability between what it described as “concurrent discriminators”. Indeed this practice had been endorsed by the EAT itself in the case of Way v Crouch  ICR , which had been relied upon by the Tribunal in Sivanandan. In Way the EAT ruled that apportionment in these circumstances was permitted by the Civil Liability (Contribution) Act 1978 (the 1978 Act). However, having given careful consideration to the 1978 Act and Way, the EAT concluded that the decision in Way was misconceived. The 1978 Act does not allow courts or tribunals to limit the liability of any one tortfeasor to a claimant; rather, it simply allows one tortfeasor to claim a contribution from any other tortfeasor who was also responsible for the damage caused to a claimant, the level of which would be determined by the Court.
Court of Appeal rejects challenge
The Council appealed to the Court of Appeal but did not seek to challenge the EAT's position on apportionment of liability to the Claimant. The EAT’s reasoning on that point therefore stands. Instead the Council’s legal representatives sought to argue that its maximum financial exposure should be that of the relatively small award made against W for whom they were vicariously liable.
The Court of Appeal dismissed the Council’s appeal. Whilst the apportionment to W had been an error of the Tribunal, the Council could not benefit from that error by arguing that they should only have such a small award applied to them.
It is clear from this case that the scope for apportioning compensation between respondents in discrimination cases is very limited. Where the damage is “indivisible” then each of the discriminators is liable for the whole of that damage. Damage will be indivisible where either more than one person has participated in the same act of unlawful discrimination (or is treated as having participated in that act due to the rules on vicarious liability), or where more than one person has contributed to the same loss or damage by different acts of discrimination. If, however, there is a rational basis for distinguishing the damage caused by one discriminator from that caused by a second discriminator then the damage will be “divisible” and the tribunal will hold the discriminators liable to the claimant for that part only of the damage which is attributable to each of them.
There remains doubt as to whether the 1978 Act applies to tribunal discrimination awards to enable one respondent to seek a contribution to an award against the other respondents. In Sivanandan the Court of Appeal seemed to assume that the Act did apply to tribunal awards, but in the equal pay case of Brennan & others v Sunderland City Council & Others  ICR 1183 the view was expressed that the Act only applied to orders of the ordinary courts and would not extend to tribunals. As neither of these cases were required to rule on that particular point, it has not been determined. If the 1978 Act does not apply to discrimination awards by tribunals, unfairness could arise as contribution would be effectively be determined by the claimant choosing to enforce the judgment against one or more respondents as he or she considered appropriate and the chosen respondent being unable to seek recovery of any of the sum against the other respondents.