Apportioning Liability in Discrimination Claims
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17.6.2011
In the recent case of London Borough of Hackney Council & Others v Sivanandan, the Employment Appeal Tribunal (“EAT”) departed from previous authority to find that, in circumstances in which more than one party is found guilty of discrimination, it had no power to apportion liability for damages as between the guilty parties. In this case, the claimant applied for employment with a charity, but was unsuccessful. The claimant believed that her non-appointment was due to the fact that she had previously brought a discrimination claim against the charity. The claimant brought proceedings against the charity and Hackney Council (a funder of the charity), for race and sex discrimination and victimisation. The claimant also named employees and committee members of the charity and Hackney Council as respondents in the proceedings. At first instance, the Employment Tribunal found that the claimant had been victimised on grounds of race by all of the respondents. The Employment Tribunal held that all of the respondents were jointly and severally liable to compensate the claimant for financial loss incurred as a result (with the exception of an employee of Hackney Council who was required to pay £1,250 for injury to feelings). Consequently, the claimant was entitled to recover the entirety of the compensation for financial loss awarded by the Employment Tribunal from any of the remaining respondents. Hackney Council appealed against the Employment Tribunal’s decision with regard to the apportionment of liability. The EAT dismissed the appeal. The EAT considered that "all things being equal" the ordinary principles of tort should apply to situations in which more than one person has either contributed to the same act of discrimination or has contributed to the same loss by different acts. Accordingly, each party found guilty of discrimination is liable for the entire award of compensation and it is not necessary to apportion liability as between the guilty parties.
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