Can employees be personally liable for discrimination claims, even when a claim succeeds against their employer?
Employers can be held liable for discriminatory acts committed by their employees in the course of their employment
under section 109 of the Equality Act 2010 (vicarious liability). This is the case even if the act is carried out without the employer’s knowledge or approval, save that the employer would have a defence if it took all reasonable steps to prevent the relevant discriminatory act.
Employees can also be held personally liable for their own acts of discrimination during employment under section 110 of the Equality Act 2010.
The Employment Appeal Tribunal case of Baldwin v Cleves School and others considered whether a tribunal could find an employer liable for acts of discrimination by its employees, but the relevant employees could escape their own liability for the same acts.
Miss Baldwin began working as a teacher at Cleves School in September 2014. In March 2015, she resigned following several incidents. One incident involved a colleague, Ms Miller, and another involved the head teacher, Mr Hodges. Miss Baldwin brought disability discrimination claims against the school and also against Ms Miller and Mr Hodges personally.
The employment tribunal upheld the discrimination claims against the school and concluded that the school was liable for the actions of Ms Miller and Mr Hodges. However, it dismissed the claims against Ms Miller and Mr Hodges personally as the situation was complex and it considered their responses “misguided”.
Miss Baldwin appealed the decision.
The EAT overturned the tribunal’s decision, finding that Ms Miller and Mr Hodges had contravened section 110 of the Equality Act 2010 and so should be held personally liable for the discriminatory acts.
The EAT stated that where all the conditions of section 110 of the Equality Act 2010 are satisfied, a tribunal has no discretion to find that individual respondents are not liable for discrimination. Those conditions were satisfied in this case as Ms Miller and Mr Hodges were employees, they did things (the discriminatory acts) that were treated as having been done by their employer and the discriminatory acts amounted to a contravention of the Equality Act 2010 by the employer.
The case serves as a useful reminder to employers that there can be both vicarious and personal liability for discrimination. This means that both the business and the individuals who carried out the discriminatory act or acts complained of could be respondents in a discrimination claim and held liable.
Employees can be daunted by facing personal liability due to the risk of unlimited awards, which could impact on their own assets and future career prospects. It can also create the risk of conflict between the employer and the individual who allegedly committed the discriminatory acts and may require separate legal representation. It is accordingly often an attractive strategy for claimants to pursue their employer and key employees, especially in cases where the employer may not have sufficient assets to settle any award.
If you require any help with allegations of discrimination, whether against you individually or a business, then please do get in touch at [email protected] for practical strategic advice.