Date published: 29 June 2005
Discrimination: Joint and Several Liability
Tribunals commonly make substantial discrimination awards against an employer, and a small award (often of just a few hundred pounds) against the individual harasser who committed the actual act of discrimination (and who is deemed to have aided and abetted the discrimination under the various statutes).
In Way & IntroCate Chemicals v Crouch, the Employment Appeals Tribunal (EAT) has held that an employment tribunal in a case of sex discrimination is entitled as a matter of law to make an award on a joint and several basis. The employee may seek to recover the sum from either the employer or the harasser, who would then recover a share of this from the other party. In most circumstances, employees would seek to recover the compensation from their former employer as the employer is more likely to have the resources to pay. However, this decision creates the opportunity for tribunals to allow the employee to sue the harasser for the full amount of compensation if the employer company is insolvent.
The EAT stated that when making joint and several awards, it is incumbent on the tribunal to apportion the share of the award vis a vis the Respondents, so that if the Claimant chooses to enforce against one party only, that party can seek a suitable contribution from the other. The apportionment should be on grounds of culpability of the two parties (and not on their relative financial strengths).
The EAT acknowledged that this is its first decision which squarely holds that a joint and several award of compensation can be made in a discrimination case. It therefore set out some of the factors employment tribunals must have regard to when considering making such an award. Firstly, the EAT advised that the practice of employment tribunals since 1975 confirms that in almost every case it will be unnecessary to make a joint and several award of compensation in a discrimination case. They added that the present practice of apportioning liability on a non-joint and several basis (where appropriate) between individual employees and employers works well in practice and does justice to the individual case.
In fact while holding that an employment tribunal has jurisdiction to make an award of compensation on a joint and several basis in a discrimination case, the EAT disagreed with the reasoning employed by the employment tribunal in doing so in this case. It appears, therefore, that this decision by the EAT may be of limited applicability and it remains somewhat unclear in which circumstances an employment tribunal should make such an award.
The EAT also advised that if an employment tribunal does consider it necessary to make a joint and several award of compensation, then it should make clear its reasons for doing so; that it will not be appropriate in almost any case for an employment tribunal to make a joint and several award which is 100% against each Respondent; and that it is not a permissible option for an employment tribunal to make a joint and several award of compensation because of the relative financial resources of the Respondent.
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