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.