Tribunal wrong to find employer liable for discrimination but not the employees who did the acts
Employers are normally liable for the discriminatory actions of their employees which take place in the course of employment; otherwise known as ‘vicarious liability’. Employees can also be personally liable. Claimants can bring certain discrimination claims against both their employer and any employees who are alleged to have carried out the discriminatory acts.
A recent Employment Appeal Tribunal (EAT) case looked at whether the legislation allowed tribunals the discretion to find the employer liable for discriminatory acts carried out by named employees, but to nevertheless find that those employees should not themselves be liable for discrimination.
In Baldwin v Cleves School and others, the Claimant brought claims of direct disability discrimination and discrimination arising from a disability against her employer (R1) and against two individual employees of R1 (R2 and R3). The tribunal found R1 liable for disability discrimination arising from the actions of R2 and R3, but that R2 and R3 should not themselves be held personally liable for disability related harassment, as their acts were a misguided attempt to deal with a complex situation.
The EAT disagreed and substituted a finding that all three parties were liable for disability discrimination. The only way an employee would not be liable for discriminatory conduct, where the employer has been found liable for it, is if the employer told them that the act was lawful, and they reasonably believed this to be true. That wasn’t the case here.
The tribunal had no discretion to look at the employees’ conduct when deciding whether they were liable as individuals. The tribunal had already found that the conduct was discriminatory.
