Employment tribunals cannot apportion liability in discrimination claims where more than one party is at fault

Out-Law News | 08 May 2012 | 2:41 pm | 2 min. read

Employment tribunals do not have the jurisdiction to apportion liability for compensation in discrimination claims where more than one party is at fault, the Employment Appeals Tribunal (EAT) has ruled.

In his ruling, Mr Justice Underhill said that the rules setting out the right of one party to claim a contribution from another do not extend to allowing employment tribunals to determine what that contribution should be. In addition, the relevant legislation only gives tribunals the power to decide whether the parties are at fault and not the amount of contributions between them.

The case had been brought be female employees of Sunderland City Council against both their employer and two of the trade unions recognised by it, the GMB and Unison. The employees alleged that an agreement entered into between the council and the unions to "cushion the impact" of the removal of performance-related bonuses which had historically benefitted male workers was sexually discriminatory.

The agreement entitled those workers who had historically been entitled to bonuses to certain additional benefits including protected pay for a finite period, an entitlement to 'non-competitive interviews' in the event of a promotion opportunity and a commitment on the part of the council to 'enrich' so far as possible the jobs of those affected. The bonuses, which were made available to workers in traditionally male-filled  roles such as gardening and street cleaning were not extended to care workers, dinner ladies and other roles traditionally held by women which were deemed to be of 'equal value'.

Under the Sex Discrimination Act, which has since been replaced by the Equality Act, an employment tribunal is able to treat "all parties" to a collective agreement alleged to be discriminatory as respondents, whether or not an action is raised against both parties. The Council wrote to the unions instructing them that they would be pursued for their share of the damages if the Council was found liable "as the Employment Tribunal has jurisdiction to determine the amount of contribution between the Respondents as part of these proceedings".

The Civil Liability (Contributions) Act allows those who have paid out damages for discriminatory acts to claim compensation from others also found to be responsible by a court.

Mr Justice Underhill said that if tribunals had the power to apportion liability, it was a question which would arise in "very many, and more typical, cases".

"It is very commonly the case that more than one legal person will be responsible in respect of an act of unlawful discrimination," he said. "Most obviously, in every case where the act complained of is done by an employee in the course of his employment both the individual employee and his employer will be jointly liable, whichever of them is in fact proceeded against."

If this was the case, the judge said, "one would expect to see provision" for apportioning liability in the legislation which gave the tribunal the power to oversee an employment-related claim - in this case, for sex discrimination.

He added that he was not convinced that employment tribunals had the same power to calculate the share of the damage done by a party not named in the original action, as a court would be able to do under the Civil Liability (Contributions) Act.

"In our view the natural reading of the sections on which they rely is indeed that the [Act] is concerned only with claims justiciable in the ordinary courts," he said. "No doubt the use of the words 'court' and 'action' is not conclusive... and it would be possible to construe them expansively if the context showed that that was the intention of Parliament. But we can see nothing in the context to suggest any such intention or that the draftsman was not using the technical language that he did in the sense in which it would normally be understood by lawyers."

He added that if the opposite had been true it would have resulted in Parliament creating a right to split contributions between discriminating parties but "incompetently neglect[ing] to give the appropriate jurisdiction to employment tribunals to enforce those rights". "In our view it has provided for no right to contribute in this field at all, which is a more coherent position," he said.