Personal liability for discrimination

It is common-place for an individual to raise discrimination claims against their employer and against the individuals who they allege discriminated against them.

This is what happened in Baldwin v Cleves School and others.

The legislative background to discrimination claims against individuals is:

• Section 109 Equality Act 2010 states that the employer will be liable for anything done by one of their employees in the course of their employment (vicarious liability)
• Section 110 Equality Act 2010 states that where a person commits an act of discrimination for which the employer is vicariously liable under s109, the individual will be in breach of the Equality Act 2010 

In this case, the Tribunal found that the conduct of both individual respondents amounted to discrimination on grounds of disability. The employer was vicariously liable for the employees’ conduct so there was a finding of disability discrimination against Cleves School. However, the Tribunal did not make a finding of discrimination against the individual respondents under s110 because their acts were “misguided” attempts to address a complex situation. They were not in any way malicious acts discrimination.

The EAT found that the Tribunal had incorrectly applied the law here and confirmed that, if the Tribunal found that discrimination had occurred because of the conduct of the individual respondents and that the employer was therefore liable for this discrimination, there was no discretion under s110 to find that the individual respondents were not liable for discrimination.

Even if acts of discrimination are “misguided” or “administrative”, the position is that if an individual is named as a respondent, and they have acted in a way that is discriminatory, a finding of discrimination must be made against that individual respondent.

The EAT clarified that the correct forum for considering the extent of culpability is that of remedies and not of liability. If a Tribunal finds, as it should have in this case, that the individual respondents are liable for discrimination and that the employer is therefore vicariously liable, then the Tribunal has a wide discretion to factor in relative culpability when it makes its decision on remedies. It is not required to order individual respondents to pay compensation to the claimant if it does not consider it just and equitable to do so.

When named in discrimination proceedings, it is important that individual respondents understand that, even if their employer agrees to support them and to fund any compensation award, the employer cannot prevent there being a finding of discrimination against the individual.