If anyone wonders just how expensive and protracted an employment dispute can be the Court of Appeal decision in London Borough of Hackney v Sivanandan is well worth reading. Lord Justice Mummery introduces his judgment as follows:
"It is 12 years since this discrimination dispute began. It arose out of two unsuccessful job applications at the end of the 20th century. The case is now a 21st century version of a 19th century Chancery saga. And it is not over yet.
"The reader of this judgment will be spared what Underhill J (the President) described in the Employment Appeal Tribunal (EAT) as the “complex and extraordinarily long history”. It is a Dickensian narrative of allegations and counter-allegations, applications and cross-applications, misunderstandings, objections, complaints, hearings, adjournments, reviews, appeals and cross-appeals and repeated wrangling about procedure, case management matters, schedules, and even about the bundling and delivery of documents."
However, it is not the extraordinary length and complexity of the proceedings which justifies this item. Rather, the Court addressed the question of whether a tribunal is entitled, where there is more than one discriminator, to apportion liability between respondents.
Ms Natasha Sivanadan failed to get a post as a Training and Development Co-ordinator for Hackney Action for Racial Equality (“HARE”). Subsequently she brought discrimination proceedings against Ms White, an employee of Hackney Council (“Hackney”) who was on the interview panel for the job, a number of others involved in the recruitment process, and Hackney itself, on the basis that Hackney was vicariously liable for its employees’ actions. At two separate hearings, an Employment Tribunal awarded compensation of £1,905.41 against Ms White, and £421,415 against Hackney, the latter including aggravated damages of £25,000.
Hackney appealed two aspects of the award of compensation. First it challenged the element of aggravated damages (but not the calculation of the rest of the compensation) and, second, it argued that the Tribunal could not award any more compensation against it than the £1,905.41 it had awarded against Ms White.
The Court of Appeal found nothing wrong with the amount of aggravated damages awarded and rejected that aspect of the appeal. It also rejected the suggestion that having awarded £1,905.41 against Ms White, it could not award any more against Hackney. While it was correct to say that tribunals do not, on a proper interpretation of the law, have any power to apportion compensation, what had happened in this particular case is that the Tribunal had broken up its consideration of compensation and considered it piecemeal. Consequently the award against W did not mean the Tribunal could not go on and consider what other discriminators should pay.
In reaching the decision the Court of Appeal observed that the wide practice of apportioning compensation between discriminators was wrong in law. However, this was no help to Hackney. The error of law was in the award against its employee – against which it had not appealed.
I think that the casual reader would be entitled to observe that if this is not apportionment (and with a huge discrepancy between the amounts the respondents were held liable to pay) then it is very difficult to see what else it could be. However, the Court of Appeal’s approach to the matter accounted for the difference as follows, first by summarising the Council’s position:
The Council was deemed to have done what Ms White had done, no more and no less. There was one statutory tort, that of discrimination by victimisation, for which both were jointly liable. It was committed by Ms White, who was implicated in the discriminatory acts of the other individuals involved, and the Council is only vicariously liable to the claimant for that tortious act…
The liability of Ms White was treated as several, but the liability of the others was treated as joint and several. That was inconsistent. The vicarious liability of the Council was co-extensive with that of Ms White, so that the loss caused to the claimant by the Council, which was “innocent”, could not be greater than the loss caused by Ms White, who actually committed the act of victimisation.
In brief, and on a broad view of the matter, the treatment of the Council was disproportionate compared with the treatment of Ms White. It was inconsistent with it and it was unfair. The Council is left with a huge liability for two acts of discrimination for which it is only secondarily liable. It has an uncertain prospect of recovering contribution for any of it from the primary individual tortfeasors.
The Court then went on to reach its conclusion:
The ET did err in law in making the award against Ms White. It purported to exercise a power to apportion her liability to the claimant, which it did not have. However, that error of law is irrelevant to this appeal, because no appeal has been brought against the award against Ms White: this appeal is from the award against the Council. However, and with considerable legal ingenuity, Mr Allen QC sought to incorporate that erroneous decision against Ms White and from which no appeal has been brought, into the Council’s appeal from the award against it. That unappealed decision is at the heart of his argument on the inconsistency of the ET in the treatment of the Council’s vicarious liability to the claimant and of its employee’s personal, but joint, liability to the claimant.
Mr Allen QC and the claimant are rightly at one on the joint liability of the Council and Ms White to the claimant for her victimisation. That is clear from the statutory provisions. Even if that position were not made clear in the 1975 and in the 1976 Act, it would be the position on the application of common law principles of vicarious liability and the liability of joint tortfeasors.
The overall inconsistency argument deployed by Mr Allen QC for limiting the financial exposure of the Council to the lesser amount awarded against its employee is based on a combination of three strands: (a) the legally erroneous, but unappealed, apportionment of the liability of Ms White to the claimant; (b) the vicarious character of the Council’s liability for Ms White’s tort of victimisation; and (c) the joint nature of the liability of the Council and Ms White to the claimant.
In my view, Mr Allen’s submission which, viewed in the abstract, might have some basis in legal theory, fails on the facts of this case. It is plain that there was no intention on the part of the claimant, Ms White or the ET at the first remedy hearing to make any determination of any remedy issue as between, on the one hand, the claimant and, on the other hand, the remaining tortfeasors, including the Council, who did not take part in that hearing. As between them and the claimant the assessment of damages remained at large. The only issue which the ET was asked to decide at the first remedy hearing was the award against Ms White personally and even that was to be limited to injury to feelings for race discrimination. The apportionment, which was made in error of law in any event, was not intended to determine any other issues of the liability of other parties to the claimant.
The claimant certainly did not intend to forgo any claims for damages that she had against the other joint tortfeasors. In my judgment, the ET’s error in making an apportionment as regards the liability of Ms White to the claimant did not prevent her from pursuing her claims against other joint tortfeasors. Those claims were simply adjourned by the ET to be determined at a later hearing. If Mr Allen is right the claims against the Council for vicarious liability were determined at the hearing that dealt only with the claim against Ms White. I do not believe that that accords with the intentions of all concerned including the ET. Nor do I regard it as correct in law.
In this case the damage suffered by the claimant in consequence of victimisation in the treatment of her two job applications was indivisible, which means that, as against the claimant, no single tortfeasor is liable only for consequences peculiar to his acts. Each is jointly liable to the claimant for the full amount of the damage suffered by her. The indivisible character of the damage for which the Council and other respondents were jointly liable was not altered by the ET’s error of law in purporting to apportion the liability of Ms White to the claimant.
In other words, there had been an apportionment; that was not allowed, but there was no need to alter the awards made so that, in effect, the outcome was what it would have been had apportionment been allowed. No wonder that people often observe that employment law provides a confusing and unpredictable area of legal practice!