What is often not appreciated is that other employees may also be personally liable for acts of discrimination as demonstrated by the long running case of Sivanandan v L B Hackney, a case that has been trundling along for some 12 years or so.
S brought claims of victimisation against L B Hackney (the Council), an officer of the Council (Ms W) for whom the Council was said to be vicariously liable, and other respondents.
S claimed victimisation under the Sex Discrimination Act 1975 and Race Relations Act 1976 (the claim started prior to the Equality Act coming into force) and succeeded in her claims, all of which related to the failure to appoint her to two particular jobs.
S was awarded against the local authority and the other respondents more than £400,000 and against a Ms W, £1,905. The Council appealed.
In the Employment Appeal Tribunal the Council argued that the Tribunal should have apportioned the liability between the various respondents. The Employment Appeal Tribunal rejected this.
The Court of Appeal held that where there are multiple respondents and a particular loss cannot be attributed to one party, tribunals must award compensation on a ‘joint and several basis’. There is no power for the Tribunal to apportion liability. The Tribunal had therefore been wrong to assess Ms W's contribution separately.
It is not uncommon for a disgruntled employee to include a claim for discrimination as it removes the statutory cap on compensation. As demonstrated in this case, in discrimination claims an employee can name an individual who it believes responsible for the act of discrimination (e.g. a colleague or the employee’s line manager). A person who is added to the claim in this way therefore faces a personal liability.
Naturally, the claimant will seek to recover the award from whichever of the respondents appears to have the most money, that is usually the employer, but there is nothing to stop them seeking enforcement against individuals. And given the current economic uncertainty, there is no guarantee that an employer will always be around to pay up.
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