Catanzano v Studio London Ltd (In Administration) UKEAT/0487/11/DM

Appeal against a ruling concerning the apportionment of compensation between three respondents following successful claims of unfair dismissal and sex discrimination. Appeal allowed in part.

The claimant was summarily dismissed after giving birth and coming back to work part-time with the first respondent, the employer (which was by the time of the hearing in administration). The ET found that she had been unfairly dismissed and had suffered sex discrimination. There were three respondents, the other two being the claimant’s managers. The ET held that first respondent would be liable for the £3,000 injury to feelings award in its entirety and the second and third respondents should each be liable for 20 per cent of that. The first respondent would be liable for the 25% uplift awarded on the injury to feelings figure, the compensation for unfair dismissal and the award for unlawful deductions and loss of holiday pay. The claimant appealed, arguing that the three respondents should have been jointly and severally liable for the awards.

The EAT upheld the appeal in part. Following Sivanandan (UKEAT/0075/10) compensation for sex discrimination ought to have been joint and several between the responsible respondents. However, this did not apply to the 25% uplift. Finally, the ET ought to have awarded compensation for loss of earnings, on a joint and several basis, for sex discrimination, although the same loss was awarded as unlawful deductions against the employer only.

_____________________

Appeal No. UKEAT/0487/11/DM

EMPLOYMENT APPEAL TRIBUNAL

FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8JX

At the Tribunal

On 7 March 2012

Before

HIS HONOUR JEFFREY BURKE QC, MRS R CHAPMAN, MR H SINGH

MS B CATANZANO (APPELLANT)

(1) STUDIO LONDON LTD (IN ADMINISTRATION); (2) MRS CELIA McMILLAN; (3) MR C WARD (RESPONDENTS)

Transcript of Proceedings

JUDGMENT

**APPEARANCES**

For the Appellant MR FEDOR PHILIP KAZANTZIS (Solicitor-Advocate)

Cubism Law 116-118 Chancery Lane London WC2A 1PP

For the Respondents No appearance or representation by or on behalf of Respondents

**SUMMARY**

SEX DISCRIMINATION

Injury to feelings

Other losses

The Appellant was awarded compensation for unfair dismissal and sex discrimination. The Employment Tribunal apportioned the award for injury to feelings between the Respondents – the employers and two managers. They ordered the employer to pay compensation for loss of earnings, on the basis of unlawful deductions, but failed to make an order for such compensation under the sex discrimination claim.

Held on appeal:

(1) Following [Sivanandan]() (UKEAT/0075/10) compensation for sex discrimination ought to have been joint and several between the responsible Respondents.

(2) But (1) did not apply to the 25 per cent uplift for which the individual Respondents were not responsible.

(3) The ET ought to have awarded compensation for loss of earnings, on a joint and several basis, for sex discrimination, although the same loss was awarded as unlawful deductions against the employers only.

**HIS HONOUR JEFFREY BURKE QC****Introduction**
  1. The Claimant before the Employment Tribunal, Ms Catanzano, appeals against three aspects of the Judgment of the Tribunal, presided over by Employment Judge Glennie, sent to the parties on 3 June 2011 with written Reasons sent on 8 July. Because the appeal relates only to part of the remedy section of that Judgment, we do not need to refer to the facts other than in very summary form. The Claimant was employed by the First Respondent, Studio London Ltd. The Second Respondent was Mrs McMillan, a senior manager of the first Respondent; and the Third Respondent, Mr Ward, was their general manager. The business of the company was the provision of studio photography at premises in Great Portland Street in London. The First Respondent was at the time of the hearing before the Tribunal, and is now, in administration. The administrators consented to the claim proceeding before the Tribunal and indicated an intention not to defend; and they did not defend; they were not present before the Tribunal; they have not been present before us; and there is no question of this appeal adding to the First Respondent's liabilities.
  1. So far as the Employment Appeal Tribunal is concerned, the First Respondent has been debarred, because it put in no answer; the Second and Third Respondents were both represented before the Employment Tribunal by the same solicitor. The Third Respondent has, however, also not put in a response to the appeal and therefore has also been debarred. The Second Respondent, Mrs McMillan, did put in an answer, but has since written a letter to the Employment Appeal Tribunal saying that she cannot afford any more legal costs, does not understand the complexities of the appeal and is suffering from stress. At the end of her letter she says this:

"I would like to believe that I too am entitled to some protection from the Tribunal, as Ms Catanzano and Cubism [Ms Catanzano's solicitors]

seem determined to pursue me to a degree that could be seen as vexatious and intended to cause personal suffering."

  1. She has not been represented. We will of course attempt to ensure that she is at no disadvantage by not being represented. The fact that a Respondent does not appear to resist an appeal does not mean that the appeal is allowed by default. An appeal is only allowed if the Employment Appeal Tribunal is persuaded that there has been an error of law; and any appellate court is rigorous to ensure that appeals do not succeed on anything other than the application of an in depth examination of the arguments put forward on behalf of the Appellant.
**Background**
  1. In May 2008 the Claimant became pregnant; and she asked for a transfer to an employed position with the First Respondent, having previously been on a freelance basis. That was agreed; and she started to work in that role, on the Tribunal's findings of fact, in September 2008. She then took maternity leave; when she left, there was no agreement as to when she would come back. Her child was born in January 2009; but soon afterwards the child was diagnosed as having a serious disorder, which no doubt affected the Claimant's ability to return to work. At the end of 2009 the Claimant asked Mrs McMillan when it would be convenient to return to work; but Mrs McMillan did not want her to come back, saying that there was not enough work to do. A similar request a month later led to the same result. The Claimant spoke to Mr Ward about the situation; but he referred her back to Mrs McMillan. She eventually returned to work on a part time basis for a trial period on 20 March.
  1. Towards the end of April she was summarily dismissed, on the basis of allegations that were never put to her and were not properly investigated, if at all. She put in a grievance, which was dealt with by the First Respondent in a manner that fell woefully short of satisfactory. It was not dealt with by either the Second or Third Respondent but by others whose identities and acts are detailed in paragraphs 34 39 of the Tribunal's Judgment.
**The Tribunal's conclusions**
  1. The Tribunal found:

(1) The prevention of the Claimant from returning to work constituted sex discrimination on the part of the First Respondent as the Claimant's employer and on the part of the Second and Third Respondents as having been centrally involved in that discrimination (see paragraphs 40 43 and 45).

(2) The dismissal was unfair. There had been no proper investigation, no disciplinary proceedings and no right to appeal. The Tribunal found that the dismissal occurred because the Respondents believed that the Claimant had been guilty of misconduct and was not an act of sex discrimination (paragraphs 44 48).

(3) The Claimant should be awarded £3,000 for injury to feelings. The First Respondent was to be liable for the whole of that sum plus a 25 per cent increase by reason of their failure to follow the ACAS Code of Practice; but, following the decision of the Employment Appeal Tribunal in Way and Anor v Crouch [2005] ICR 1362, a Judgment given on 3 June 2005, the sum of £3,000 awarded for injury to feelings should be apportioned between the Respondents on a just and equitable basis, namely that the First Respondent would be liable for the £3,000 in its entirety and the Second and Third Respondents should each be liable for 20 per cent of that £3,000, i.e. £600 each.

(4) The uplift on that £3,000 should, however, not be the subject of an award apportioned between the three Respondents, because the First Respondent was to blame for the uplift and the Second and Third Respondents had not directly influenced the way in which the grievance process had been undertaken.

(5) The Claimant would be awarded the sum of £38,626.95 as compensation for unfair dismissal, including a 25 per cent uplift and a basic award for £380; that award was made, of course, against the First Respondent only.

(6) The Claimant was awarded £17,907.86 for unlawful deductions from wages and for loss of holiday pay, an award which again, of course, was made only against the First Respondent, the Second and Third Respondents being Respondents to the discrimination claim but not to any of the other claims that the Claimant put forward.

**The grounds of appeal**
  1. Mr Kazantzis, on behalf of the Claimant, has put forward three grounds of appeal against those orders. They are, in short, these:

(1) The Tribunal erred in law in apportioning the award for injury to feelings as they did; they should have made each Respondent jointly and severally liable for that award as a whole.

(2) The Tribunal ought simply to have added the 25 per cent uplift to that £3,000, i.e. a further £750, and made each Respondent jointly and severally liable for the whole of the award including the uplift.

(3) Under the head of the award for unlawful deductions from wages the Tribunal awarded the Claimant's unpaid salary between 1 January and 19 March 2010, the period for which she was kept out of work and paid no salary, as a result of the discrimination to which we have earlier referred. The sum awarded in respect of that period was in gross terms £7,808.35, to which the Tribunal then applied the 25 per cent uplift to reach a gross total of £9,256.35. At paragraph 75 the Tribunal said that, having awarded that sum under the complaint of unlawful deductions from wages, no further award in respect of loss of earnings was appropriate. That, it is submitted, was an error, because the loss of earnings awarded under the unlawful deduction head arose directly, on the Tribunal's findings, from the discrimination by all three Respondents and therefore should also have been awarded under the discrimination head but against all three Respondents jointly and severally.

  1. We will deal with each of those heads of appeal in the order that we have just set out. It is clear that they all arise because of the insolvency of the First Respondent. We are told, although it does not affect our decision, but it is part of the important background, that the First Respondent, albeit, as we understand it, still in administration and not in liquidation, has no funds and had no insurance in respect of the Claimant's claims.
**Apportionment of award for injury to feelings**
  1. The Tribunal heard these claims in April 2011. Their Judgment was signed by the Employment Judge on 27 May and sent to the parties on 3 June. On 27 May the Employment Appeal Tribunal, presided over by the then President, Underhill J, handed down its Judgment in the case of London Borough of Hackney v Sivanandan UKEAT/0075/10. The Employment Tribunal could not have been aware of that Judgment. In Sivanandan the Claimant was found to have been victimised by the members of an interview panel of a body called Hackney Action for Racial Equality because she had previously brought, and succeeded in, proceedings against that body. She had brought the claim which led to the hearing before the EAT in 2011 against the London Borough of Hackney, Hackney Action for Racial Equality and against a number of the members of the panel by whom she had been interviewed.
  1. The liability hearings had a prolonged and convoluted history. By the time remedies came to be considered, the only respondents who had not been debarred or disbanded were the borough and a Mrs White, who was an employee of the borough but who worked for the body to which we have referred. Hackney appealed against the Tribunal's order that they and Mrs White were jointly and severally liable to pay to the claimant the substantial compensation that had been awarded by the Tribunal for victimisation. The Tribunal had made an apportionment on the basis that they had a discretion to do so following the Employment Appeal Tribunal's decision, the Employment Appeal Tribunal being on that occasion presided over by HHJ Birtles, in Way.
  1. Thus it came about that the EAT in Sivanandan had to consider whether such a discretion existed; and it was held that it did not, where the loss suffered by the Claimant was an indivisible loss, i.e. one which had been caused at the same time by the individual respondents for whose acts the employer was liable. It was held that, if the loss being the subject of compensation was historically divisible, for example in a case in which different employers had contributed at different stages to an industrial disease, the court or Tribunal could hold that each employer was liable for the particular damage he had caused, and, in the employment context, different respondents who had contributed to the total loss by different acts at different times, could within the discretion of the Tribunal be made liable for the individual parts that they had individually caused.
  1. At paragraphs 16 and 17 of their Judgment in Sivanandan the Employment Appeal Tribunal said this:

"16. What those rules are is reasonably well established, though there are some particular problem areas and confusion can be caused by the different senses in which the term 'apportionment' is sometimes used. The most illuminating recent expositions of the law are in the judgment of Laws LJ in Rahman v Arearose Ltd. [2001] QB 351, at paras. 17-22 (pp. 361-4), and the opinion of Lord Hoffmann in Barker v Corus UK Ltd. [2006] 2 AC 572, esp. at paras. 25-43 (pp. 587-592). For present purposes the following summary will suffice:

(1) Where the same, 'indivisible', damage is done to a claimant by concurrent tortfeasors – i.e. either tortfeasors who are liable for the same act (joint tortfeasors) or tortfeasors who separately contribute to the same damage – each is liable for the whole of that damage. As between any particular tortfeasor and the Claimant no question of apportionment arises (leaving aside the question of contributory negligence). The classic statement is that of Devlin LJ in Dingle v Associated Newspapers Ltd. [1961] 2 QB 162, at p. 189.

(2) It is obviously potentially unjust that a single tortfeasor may find himself responsible to the claimant for the entirety of damage for which others may also be liable or to which they may have contributed. That issue is addressed (in England and Wales) by the provisions of the 1978 Act. Section 1 of the Act gives any person liable in respect of any damage the right to claim 'contribution' from concurrent tortfeasors to the extent of such proportion of the overall liability as the court decides, applying the criterion in section 2 of the Act: as mentioned above, this is what is found 'to be just and equitable having regard to the extent of that person's responsibility for the damage in question'. It is important to emphasise that while this kind of 'apportionment', as it is often described (though that term is not used in the statute) determines the liability of concurrent tortfeasors as between themselves, it has no impact on the liability of any of them to the claimant. The claimant can recover in full against whichever tortfeasor he chooses, and that tortfeasor has the burden of recovery of any contribution from the others, and the risk that they may not be solvent.

(3) The previous two points are concerned with damage which is indivisible. If there is a rational basis for distinguishing the damage caused by tortfeasor A from that caused by tortfeasor B the position is different. (This is the case, for example, where employers contribute at successive stages to the development of a progressive industrial disease, such as deafness.) In such a case the court will hold A and B liable to the claimant for that part only of the damage which is attributable to each of them. This process is also referred to as 'apportionment', but it is a quite different exercise from that carried out under the 1978 Act. Where it applies, the claimant will have to proceed against each tortfeasor for the part of his loss caused by him.

(4) The decision of the House of Lords in Barker has recognised an exception to the foregoing principles in the very particular circumstances there considered (though it in turn has been partially reversed by subsequent legislation); but that has no relevance for our purposes.

17. We have said that those rules should apply to compensation for the statutory tort of discrimination 'other things being equal'. Mr. Clayton was not able to suggest any special features of the law of discrimination which required a different approach, nor can we see any. It is our view, therefore, that the Tribunal had no power to conduct the exercise which the Council claims that it should have conducted. It is not, for the avoidance of doubt, being said that it should have apportioned liability on the basis that the Claimant's loss was divisible, i.e. that different acts of discrimination as between the Council Respondents and the HARE Respondents caused different damage: Ms. White, through whom the Council was liable, was party to all the acts complained of. Rather, what Mr. Clayton on behalf of the Council seeks is an apportionment of liability on the basis of the Council Respondents' and the HARE Respondents' relative degrees of responsibility for the Claimant's loss. That submission is misconceived: as explained above, the relative responsibility of the tortfeasors 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."

  1. The Tribunal then addressed some earlier cases, including Way, in which a different view had been taken or might be thought to have been taken. In Way, for example, at paragraph 23(1) the EAT had said this:

"The practice of Employment Tribunals since 1975 confirms that in almost every case it would be unnecessary to make a joint and several award of compensation in a discrimination case. The present practice of apportioning liability (where appropriate) between individual employees and employers works well in practice and does justice to the individual case."

  1. In Sivanandan the EAT disagreed with that approach and, however desirable it was, set out their view that it was unsoundly based in law. At paragraphs 21 and 22 the EAT said:

"21. We acknowledge that, as Judge Birtles says at (1), the course of apportioning liability between employee and employer respondents has been not uncommon over many years, though we do not know quite how widespread the practice has been. As to whether it 'does practical justice', we are not so sure. We can see the broad attraction of ensuring that the individual discriminator has to share some of the cost of compensating the victim for acts of which he or she was the primary perpetrator (though even if the award is apportioned that will only happen if the employer does not choose to indemnify the employee). But that result can equally be achieved by awarding contribution as between the two (see para. 16 (2) above), and we do not see why it is just that the claimant should undertake the risk of the respondent employee being unable to meet that part of the liability which is apportioned to him or her. It will also of course be largely arbitrary whether the individual discriminator (or all of them) has been joined in the first place.

22. But, whatever view may be taken about the desirability of the practice, we are bound to say that we do not understand the legal basis on which it has been adopted. We note that similar doubts were expressed by Langstaff J in this Tribunal in Munchkins Restaurant Ltd v Karmazyn (UKEAT /0359/09/LA), at paras. 32-33. We are not, with respect, assisted by either of the authorities referred to. If employer and employee are jointly liable, there is on ordinary principles no basis for apportionment. Although [Way] appears to rely on the 1978 Act, that is, with respect, a red herring: as we have sought to explain, the Act has no bearing on the liability of concurrent tortfeasors to the claimant. (And, even if it did, it would seem to lend little support to what we understand to be the usual practice of apportioning most of the liability to the employer, since it will typically be the employee who is the more culpable: as Judge Birtles recognises at (4), ability to pay is not a relevant consideration under section 2.) Smith J. in Armitage makes no reference to the 1978 Act; but nor does she identify any other basis for the discretion to which she referred."

  1. We should finally refer to paragraph 25, which is in these terms:

"25. In view of the misunderstanding which seems to have prevailed in this area of the law, we would, at the risk of repetition, emphasise that nothing in this judgment precludes "apportionment" in either or both of two other senses. First, there may be cases where the injury caused by different acts of discrimination is 'divisible' – see para. 16 (3) above – and the Tribunal can, and indeed should, apportion to each discriminator responsibility for only that part of the damage caused by him. Secondly, there may be claims of contribution as between the respondents – though, we repeat, that is not the present case. It was confirmed by the Court of Appeal in Ross v Ryanair Ltd. [2005] 1 WLR 2447, at para. 28 (p. 2458), that the 1978 Act applies to liabilities under the discrimination legislation. However, 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 (this issue did not arise in Ross because the primary claim was brought in the County Court). That question will have to be considered if and when it arises."

  1. In the subsequent decision of the Employment Appeal Tribunal, presided over on this occasion by Silber J, in [Bungay and Anor v Saini and Ors]() UKEAT/0331/10, Sivanandan was followed and Way was disapproved in these terms:

"37. The Court of Appeal was apparently not referred to [the] earlier case of [Way] in which this Appeal Tribunal held that an Employment Tribunal had not erred in making an award for sex discrimination on a joint and several basis against the respondent company and its managing director, but that the Tribunal had erred in making the whole of the compensation payable jointly and severally to both respondents. Judge Birtles giving the judgment of this Appeal Tribunal explained that:

'23. […] (3) if an Employment Tribunal considers it necessary to make a joint and several award of compensation it must have regard to the language of section 2(1) of the Civil Liability (Contribution) Act 1978 […]. In other words, it is not appropriate in almost any case for an Employment Tribunal to make a joint and several award which is 100% against each respondent. That is to do violence to the language of s2(1) of the 1978 Act which specifically directs the attention of the Employment Tribunal "to the extent of that person's responsibility for the damage in question.'

38. This statement is inconsistent with the approach of the Court of Appeal in Gilbank [v Miles [2006] IRLR 538] and the reasoning in the remedy judgment in this case that the Appellants had been 'the prime movers in the campaign of discriminatory behaviour', which significantly is very similar to what was said by the Court of Appeal in Gilbank ('consciously fostered and encouraged a discriminatory culture') as we have explained in paragraph 36 above.

39. In our view, the correct approach to the measure of compensation for loss caused by unlawful discrimination should be to follow the ordinary principles to the law of tort which was the approach adopted in the Gilbank case and in two further cases decided after the remedies judgment in the present case. First, in [Karmazyn], Langstaff J giving the judgment of this Appeal Tribunal explained that:

'33. We confess to having very considerable doubts about the part of the decision in [Way] which suggests that as between a Claimant and a Respondent or Respondents the percentage of liability of the Respondents is relevant in the way in which that Tribunal determined. We consider the appropriate principle is that where there is an award of joint and several liability the Respondents or any one of them is liable for the full extent of the damages to the Claimant. As between the Respondents a Respondent may have a right to seek contribution from a co-Respondent, depending upon the relative contribution and responsibility of each of the Respondents to the wrong which has been done, but we do not see how that affects the position of the Claimant, who is entitled, if the award is joint and several, to receive the full extent of his award from any such of the Respondents as he chooses.'"

  1. At paragraph 42 the EAT decided that they should follow Sivanandan and other cases which appeared to doubt the principle set out in Way rather than to follow Way, about which they said that the time might well have come when Way should no longer be relied upon or even cited as accurately representing the law.
  1. In the absence of anyone representing the Second and Third Respondents, we have considered carefully whether an argument that the Way approach should be regarded as correct and the conclusions of Underhill J in Sivanandan and Silber J in Bungay should be regarded as erroneous would have succeeded if made. Our conclusion is that it would not and that the principle as set out in Sivanandan and Bungay must now be regarded as the correct principle. Where the loss which is being compensated for in a discrimination case is attributable to what, in a claim of tort, would be described as concurrent tortfeasors, and in employment law as concurrent wrongdoers, it is indivisible. There is no power in the Tribunal to apportion that loss between the Respondents in the sense of ordering that the Respondents, between themselves and the Claimant, should bear that loss other than each being jointly and severally liable for the whole. There may be claims between Respondents; who are jointly and severally liable to the Claimant for the whole of an award, for contribution as between each other; but there is no power in the Tribunal to make an assessment of such contributions as between the Claimant and the Respondents, who must be held jointly and severally liable for indivisible damage. This is not a case in which the acts of discrimination on the part of the Second and Third Respondents for which the First Respondent are liable were separate in time or otherwise from those of the employer, the First Respondent. The First Respondent is liable on the basis of their vicarious responsibility for the actions of the Second and Third Respondents.
  1. We can, in these circumstances, see no escape from concluding that, in the light of the decisions of the Employment Appeal Tribunal in Sivanandan and in Bungay, which explain in clear and cogent terms why the earlier cases had perhaps fallen into error, the Employment Tribunal in this case were wrong not to have ordered that the liability of all three Respondents for the injury to feelings award was a joint and several liability. The effect of that conclusion is that each of the Respondents is liable to the Claimant for the whole of the £3,000. Each Respondent has a right under the 1978 Act, referred to in both Sivanandan and Bungay, to seek a contribution from the others; but, as between them and the Claimant, each should have been held by the Tribunal and is held by us to be jointly and severally liable for that £3,000.
**The uplift**
  1. The power of the Tribunal to increase an award made to a claimant within the jurisdictions set out in the schedule to the Trade Union and Labour Relations (Consolidation) Act 1992 is derived from section 207A of that Act. Section 207A(1) provides:

"The section applies to proceedings before an Employment Tribunal relating to a claim by an employee under any of the jurisdictions listed in Schedule A2."

  1. Sub-section (2) provides:

"(2) If, in the case of proceedings to which this section applies, it appears to the employment tribunal that—

(a) the claim to which the proceedings relate concerns a matter to which a relevant Code of Practice applies,

(b) the employer has failed to comply with that Code in relation to that matter, and

(c) that failure was unreasonable,

the employment tribunal may, if it considers it just and equitable in all the circumstances to do so, increase any award it makes to the employee by no more than 25%."

  1. There is no doubt that the discrimination claim in this case constituted proceedings to which section 207A applied, and that that claim concerned a matter to which a relevant code of practice, namely the ACAS Code of Practice, applied. The Tribunal found that the First Respondent had failed to comply with that code; and, although they did not find in terms that that failure was unreasonable, they describe the failure as "gross"; and that is sufficient to show that sub-section (2)(c) of section 207A was satisfied in this case.
  1. Thus the Tribunal had a discretion, if they considered it just and equitable to do so in all the circumstances, to increase the award made to the Claimant for discrimination by up to 25 per cent; and they decided at paragraph 53 that it was just and equitable to do so and to do so by the maximum amount, by 25 per cent. Mr Kazantzis submits that that increase, commonly described as an "uplift", when made became part of the award of compensation for discrimination, and therefore it had to be ordered by the Tribunal that each of the three Respondents was jointly and severally liable for not only the £3,000, which we have addressed under ground 1 of this appeal, but also for the £750 uplift. In declining to do so the Tribunal were, it is submitted, in error of law.
  1. However, at paragraph 61, the Tribunal concluded that the responsibility for the uplift rested with the employer, the First Respondent, but not with either the Second or Third Respondent, who had not, on the facts as found, directly influenced the way in which the grievance process had been handled. The facts as found to which the Tribunal were referring in paragraph 61 are those set out at paragraphs 34 39, which we have already summarised. The history of what happened to the grievance process did not involve either the Second or the Third Respondent. If a Claimant were to be the victim of discrimination by her employer by reason of the acts of employees A and B over a period and then by reason of the acts of employees C and D over a separate period for which A and B were in no sense responsible, the employer would of course be responsible for the whole of the Tribunal's award of compensation for that discrimination, but A and B would not be the equivalent in employment law terms of joint tortfeasors with C and D; and vice versa. The damage which A and B had caused would have taken place at a different time from, and would have caused different loss from, the damage caused by C and D; the damage would be divisible; and in such a case the principle set out in Sivanandan would permit the Employment Tribunal to hold A and B liable only for that part of the damage attributable to their acts or failures to act and to treat C and D similarly.
  1. In our judgment, there is no reason why that principle should not be applied in a case where the individual Respondents are jointly and severally liable together with the employer for the discrimination but have played no part at all in the actions or inactions which have caused the award of an uplift. The uplift is, of course, added to the award and becomes part of the award. To that extent we accept Mr Kazantzis' argument; but once it becomes part of the award, we see no reason why the principle to which we have referred should not apply to that part of the award as it would apply to any other part of the award. In our judgment, that principle does apply to the uplift part of the award because, on the Tribunal's findings of fact, the Second and Third Respondents were not in any way responsible for: the handling of the grievance process or for the uplift part of the award. It was the subsequent acts of others which were responsible for that part of the award. Therefore, in our judgment, the Tribunal were correct in not ordering the Second and Third Respondents to pay any part of that uplift; and we reject the second ground of this appeal.
**Two heads rather than one**
  1. Under this head of the appeal, Mr Kazantzis' argument is very straightforward. Although at one time he was minded before the Tribunal to accept that apportionment applied to an award for loss of earnings awarded as compensation for discrimination, he tells us that he resiled from that and asked the Tribunal to order joint and several liability for such loss of earnings. What the Tribunal did was, firstly at paragraph 55, to say that responsibility for loss of earnings rested with the First Respondent and not with any individual employees or officers; and secondly, and in any event, to award to the Claimant her loss of earnings in the 11 week period for which she was kept out of work by reason of what the Tribunal found to be sex discrimination under the head of unlawful deductions from wages and to decline to award anything for loss of earnings under the head of sex discrimination, because, as we have earlier set out, the Claimant had been fully compensated under the complaint of unlawful deductions from wages (see paragraph 75). That, submits Mr Kazantzis, was wrong in law. It is clear from the findings of the Tribunal that the responsibility for the Claimant being kept out of work for the 11 week period was that of the Second and Third Respondents. The Tribunal were bound to award compensation for the loss of earnings during that period under the head of sex discrimination. The fact that they were making an award of money in respect of unlawful deductions from wages did not absolve the Tribunal from a need to award under the sex discrimination head, particularly when the result was that what ought to have been a joint and several liability of the Second and Third Respondents and the employer to pay the loss of earnings as compensation for sex discrimination became an award of the same sum but only against the employer when awarded under the unlawful deduction head.
  1. We can see no answer to these submissions. Of course, if there can be no difference in terms of amount, period, the identity of the Respondents who are liable or the nature of that liability between an award of compensation under one head and an award under another, then the Tribunal is entitled to make their award under one head only. There would be no purpose in making an entirely overlapping award against the same Respondents under two heads; but that was not the case here. The Tribunal did not know that they could not in law apportion the liability for compensation for sex discrimination between the three Respondents because they followed Way; but in law they were obliged to hold that all three were jointly and severally liable. By awarding the losses in respect of the 11 weeks under the head of unlawful deductions from wages only they deprived the Claimant of an award in respect of that sum against the Second and Third Respondents.
  1. In the light of the law as it now is, as a result of the decisions in Sivanandan and Bungay, the Tribunal had no discretion to make an apportionment; they ought to have made, as we have said in relation to ground 1 of this appeal, a joint and several liability order against all three Respondents in relation to the award for injury to feelings; and they ought to have made a similar award in relation to loss of earnings. Of course they would need to say something which would ensure that there was no double recovery; but that would have provided no difficulty. We have no doubt that, had the Tribunal appreciated that the law was not what they thought it to be, they would not have said what they said in paragraphs 55 and 75. They should have made a joint and several award of the appropriate loss of earnings against all three Respondents under the sex discrimination head, and by not doing so, although they could not have known that at the time, they were in error of law. Thus the Claimant succeeds in the third head of her appeal; and the appeal is allowed to the extent that we have set out.
**Disposal**
  1. We will need to discuss what the terms of the order resulting from our decision should be. We note that the award both of loss of salary in the 11 weeks and also for holiday pay were made in gross terms. Mr Kazantzis has agreed that that would appear to have been a mistake and that we should make our order in net terms; and we are grateful to him for giving us some of the appropriate figures.

Published: 19/05/2012 18:33

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