Wednesday, 28 September 2011

Discrimination - Vicarious Liability & Aggravated Damages

[Thanks to Dr John McMullen of Wrigleys Solicitors LLP for preparing this case summary]

Can agents of an organisation make it vicariously liable for acts of discrimination under the Employment Equality (Religion or Belief) Regulations 2003, regs 22 and 23 (now s. 109 of the Equality Act 2010), even though they have not been authorised by the principal to discriminate?

Yes, says the EAT (Silber J) in Bungay v All Saints Haque Centre. The appellants in this case were members of the board of a religious centre. It was held by an employment tribunal that they had caused the unfair dismissal of the claimants, who were employees of the centre, and that they had unfairly discriminated against them on ground of their faith (on account they were Hindu). The appellants were authorised to run the centre even though they did this in a discriminatory manner. Under agency principles however (and see now EA 2010, s. 109 (3)) their acts were treated as being done by the centre.

The tribunal also found the board members were jointly and severally liable with the centre for discrimination damages on the ground they were "prime movers" in the campaign of discrimination.

Further (following The Governing Body of St Andrew's Primary School v Blundell [2010] UKEAT/0330/09/0608), aggravated damages could be awarded in respect of the board members' post-employment conduct in taking a high handed approach to disciplinary proceedings and making unfounded allegations to the police, which cause the claimants much distress.

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