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Employment Tribunal wrong to apportion damages in discrimination case, Appeals panel rules

Employment Tribunals only have power in certain circumstances to decide what proportion of damages someone is responsible for in discrimination cases where there is more than one guilty party, an Employment Appeal Tribunal (EAT) has said.

The EAT rejected an appeal by Hackney Council that a 2008 Employment Tribunal ruling was wrong to find it, and members of a recruitment panel it had set up, 'jointly and severally liable' for damages in a discrimination case.

Joint and several liability means that one party can be pursued for all damages due in a case regardless of their individual share of the liability, leaving that party to pursue the others for a contribution to their share.

The recruitment panel failed to appoint candidate N Sivanandan to either of two roles in 1999. Members of the panel and the Council were subsequently found guilty of discrimination. The 2008 ruling said that Sivanandan was entitled to £421,415 in damages.

The Tribunal was correct to rule that the Council and members of the recruitment panel had joint and several liability, but had been wrong to award £421,415 in damages because that figure had deducted money Sivanandan had already been awarded in a separate Tribunal settlement with a member of the panel, the EAT ruling said.

Sivanandan had won more than £1,900 in damages from a panel member following a separate Tribunal hearing in 2007, the EAT ruling said.

"The Tribunal had no power to make an apportionment such as the Council sought, and the appeal must be dismissed accordingly," the EAT said in its ruling.

"The justification for the joint and several liability rule is that if you caused harm, there is no reason why your liability should be reduced because someone else also caused the same harm," the EAT said.

"We can see no basis for not applying the ordinary rules in a case like the present, where the concurrent discriminators ... are not employer and employee," the EAT said in its ruling.

The EAT said it was up to the Council to argue for contributions towards the total damages from individuals on the recruitment panel, but that it was irrelevant to Sivanandan who she received the money from.

"The relative responsibility of the [wrongdoers] may be relevant to contribution as between them but it is not relevant to their liability, in a case like the present, to the claimant," it said.

"The approach to the measure of compensation for loss caused by unlawful discrimination should follow the ordinary principles of the law of [wrongdoing]," the EAT ruling said.

"Other things being equal it would seem that the same should be the case as regards the rules which apply where more than one person has participated in the same act of unlawful discrimination or has contributed to the same loss by different such acts," the EAT ruling said.

"Where the same, 'indivisible', damage is done to a claimant by concurrent [wrongdoers] – i.e. either [wrongdoers] who are liable for the same act or [wrongdoers] who separately contribute to the same damage – each is liable for the whole of that damage," the EAT ruling said.

The EAT said that sometimes it would be possible for Employment Tribunals to determine responsibility for discriminatory behaviour and in those occasions it should divide up damages.

"There may be cases where the injury caused by different acts of discrimination is 'divisible' and the Tribunal can, and indeed should, apportion to each discriminator responsibility for only that part of the damage caused by him," the EAT said in its ruling.
The Civil Liability (Contribution) Act allows those who have paid out damages for discriminatory acts to claim compensation from others also found to be responsible.

"Any person liable in respect of any damage suffered by another person may recover contribution from any other person liable in respect of the same damage (whether jointly with him or otherwise)," the Civil Liability (Contribution) Act provides.

The EAT questioned whether the Act, taken in consideration with UK discrimination laws, gives Employment Tribunals the authority to make judgments on how responsible parties should share damages..

"There must be a question whether the statutes/regulations in question confer jurisdiction to determine such contribution claims on the employment tribunal, as opposed to by way of separate proceedings in the ordinary courts.  That question will have to be considered if and when it arises," the EAT said in its ruling.

"The present case is not one of apportionment between employer and employee respondents," the EAT said in its ruling.

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