[Thanks to Emma Price of Temple Garden Chambers for preparing this case summary]
No, says the Court of Appeal in London Borough of Hackney v Sivanandan & Ors.
The Council, its employee Ms White and other respondents not employed by the Council were found liable for discriminatory acts against the Claimant. At two separate remedies hearings, the employment tribunal ordered Ms White to pay £1,905.41 in respect of injury to feelings and the Council and the other respondents jointly and severally to pay the Claimant £421,415.
The Council's case in the Court of Appeal was that the Council's liability should be no greater than that of Ms White's, the employment tribunal having fallen into error by its inconsistent treatment of the discriminators as to joint and several liability and apportionment.
The Court of Appeal found that whilst the employment tribunal had erred in finding it had the power to apportion, the decision in respect of the Council's liability was legally correct as the employment tribunal had chosen not to apportion on the facts. The decision in respect of Ms White was wrong in that the employment tribunal purported to exercise a power to apportion liability to the Claimant, which it did not have, but that error of law was irrelevant to the Council's appeal as there was no appeal of that decision.