Individual liability for discrimination
20 May 2024
When is an individual liable for acts of discrimination suffered by an employee? The Employment Appeal Tribunal (EAT) has recently considered this in a case where the claimant brought claims for disability discrimination against both her employer and two of her colleagues.
Baldwin v Cleves School [2024] EAT 66
Facts of the case
The claimant was a newly qualified teacher who was disabled within the meaning of the Equality Act 2010. She resigned following a number of incidents, including one with a colleague (M) and another with the head teacher (H). These related to her disability and information that had been sought, without her consent, from the claimant’s tutor about her ill health. She brought claims for disability discrimination against the school, as well as against M and H individually.
The employment tribunal upheld two disability discrimination claims against the school, finding it was vicariously liable for the acts of discrimination by M and H, as those acts had been done in the course of their employment. The employer was found not to have taken ‘all reasonable steps’ to prevent the discrimination from occurring, which is necessary to avoid a finding of vicarious liability for discriminatory acts committed by an employee in the course of employment.
The tribunal rejected the claims against the individual respondents (M and H) on the basis that although their acts of discrimination were “misguided”, they were done in an attempt to address a complex situation. Their main failing, according to the tribunal, was in not obtaining HR advice in good time. The claimant appealed to the EAT.
EAT decision
The EAT has upheld the claimant’s appeal, substituting a finding that M and H were both liable for the acts of discrimination, along with the school as their employer. It was not open to the tribunal to find that the respondent employees were not liable, once it had determined that the employer was vicariously liable for acts that were found to be in contravention of the Equality Act 2010. The legislation does not allow the tribunal to exercise any discretion in these circumstances. Once vicarious liability is established, the tribunal is required to find the individuals liable, if they are named as respondents in the claim.
The Birketts view
This decision serves as a reminder that individuals can be named as respondents in tribunal claims and be found liable for acts of unlawful discrimination that have been committed in the course of their employment. An employer may be able to defend a claim on the basis that it has taken ‘all reasonable steps’ to prevent the discrimination; this will usually require evidence of recent (and good quality) ED&I training for employees, with robust and comprehensive policies and procedures.
In claims of harassment, it is not uncommon for individual (alleged) perpetrators to be named as respondents. A tribunal may well find such acts to have still occurred ‘in the course of employment’ even when they have occurred at work social events, outside of working hours and off work premises. It can present particular problems in practice for an employer when defending such a claim if an individual named as a respondent is no longer employed by that employer. It is also often advisable for an individual respondent to have separate legal representation, due to the risk of a conflict of interest arising.
Note that a tribunal can award compensation against individual respondents, although in practice the employer and any individual respondents will usually be ‘jointly and severally’ liable for any compensation.
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Liz Stevens
Services
The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at May 2024.