Apportioning Liability in Discrimination Claims

[Thanks to Jahad Rahman of Kervin & Barnes Solicitors for preparing this case summary]

The EAT (Underhill P) has handed down its decision in the case of London Borough of Hackney v Sivanandan & Others, which is authority for the proposition that where an employer and employee are jointly liable for discrimination, there is on ordinary principles no basis for the apportionment of damages.

The claimant applied for employment with a charity but was unsuccessful. She claimed that her non-appointment was the result of discrimination and victimisation due to her previous discrimination claim against the charity.

The claimant brought proceedings against the charity and Hackney council, which funded the charity for race and sex discrimination and victimisation. She also named employees of the council and the charity and committee members as respondents in the proceedings.

The tribunal upheld the complaints of victimisation and determined that the respondents (save an employee of the council who was awarded to pay £1,250 for injury to feelings) are jointly and severally liable to pay the claimant £421,415.

The EAT dismissed the council's appeal against the tribunal's decision that the award be joint and several and held that compensation for loss caused by unlawful discrimination should follow the ordinary principles of the law of tort. As such, where an employer and employee are jointly liable for the loss caused - each is liable for the entire award of compensation and it is not necessary to apportion liability as between the discriminators.