London Borough of Hackney v Sivanandan UKEAT/0075/10
Ms Sivanandan was a race equality adviser. She applied unsuccessfully for two employed positions with Hackney in 1999. She brought claims for sex and race discrimination out of the failure of Hackney’s Action for Race Equality (HARE) to shortlist her for the employed positions and also victimisation. There were several Respondents to the discrimination claims, the director of HARE, the members of HARE, the executive committee of HARE, a limited company operating as HARE, Ms White who was employed by Hackney to assist HARE and Hackney who would be vicariously liable for the acts of Ms White.
The tribunal found that she had been victimised on grounds of race by all the Respondents. Ms White was the only Respondent willing and able to appear. Hackney had been de-barred from defending at the remedy stage for failure to comply with numerous case orders. A remedies hearing in 2007 decided that liability should be apportioned between all the Respondents but the award against Ms White should be limited to £1,250 in respect of injury to Ms Sivanandan’s feelings. No consideration was given at that time to what the total compensation should be. That was not considered until a further remedies hearing in 2008.
At the remedies hearing, the tribunal made a joint and several award against the other Respondents except Ms White, awarding Ms Sivanandan £262,000 for financial loss, £15,000 for injury to feelings, £25,000 for injury to health and £25,000 in aggravated damages and interest amounting to £421,415 in all. Hackney appealed against the tribunal’s decision that the award be joint and several. The appeal was dismissed. The appeal tribunal held that where an employer and an employee are jointly liable for the loss caused each is liable for the entire award of the compensation and it has no power to apportion liability as between the discriminators.
Key point: Joint and several liability remains the norm.