London Borough of Hackney v Sivanandan & Ors UKEAT/0075/10/CEA

Appeal against decision to make joint and several awards in discrimination claims and cross-appeal against level of certain parts of the award. Appeals dismissed.

The proceedings had begun in 1999 after the claimant sued for discrimination and victimisation. She had been interviewed unsuccessfully for two posts in quick succession: one at the local authority and another at a race relations agency, that worked closely with, and was partly  funded, by the council. Her claims were brought against; the local authority, one of their employees who had been on the agency interview panel, the agency Board and the company that ran the agency: the exact legal status of the agency was unclear.  In the course of the proceedings, the agency was disbanded and the local authority was debarred, leaving only the employee to defend the remedy claim, as the agency board members did not participate in any of the proceedings. Eventually the remedy claim was heard in 2008, no respondents  were represented and a total award of c£427,000 was made in a written judgment of 2009. All the respondents were found joint and severally liable except for the employee.

In this appeal Underhill J reviews the principles awards and  joint tortfeasors, summarising the current position as broadly that

* Where the same, "indivisible", damage is done to a claimant by concurrent tortfeasors, each is liable for the whole of that damage. * It is potentially unjust that a single tortfeasor could 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... though apportionment between the tortfeasors themselves has no impact on the liability to the claimant * If there is a rational basis for distinguishing the damage caused by tortfeasors the position is different and the court can hold that a tortfeasor is only liable for the damages attributable to them.

He goes on to review recent authorities, such as Bullimore v Pothecary Witham Weld, involving apparent apportionment and observes that while making the individual discriminator share some of the costs of their actions may be broadly attractive, it is not just that the claimant should bear the risk of pursuing against a respondent who may not be able to meet the liability, concluding that

"we would encourage tribunals henceforward only to make "split awards" between such respondents (as regards the same injury or loss) if such an order is positively sought by one of the parties and if it is clearly demonstrated what proper legal basis (i.e. something other than the 1978 Act) exists for the discretion referred to in Armitage …"

but emphasising that nothing in his judgment precludes apportionment. He then dismisses the cross-appeal .

______________

Appeal No. UKEAT/0075/10/CEA

EMPLOYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 26th January 2011

Judgment handed down on 27 May 2011

Before

THE HONOURABLE MR. JUSTICE UNDERHILL (PRESIDENT), MR. A. HARRIS, MR. T. STANWORTH

LONDON BOROUGH OF HACKNEY (APPELLANT)

– and –

MS. NATASHA SIVANANDAN and OTHERS (RESPONDENTS)

Transcript of Proceedings

JUDGMENT

**APPEARANCES**

For the Appellant MR. RICHARD CLAYTON (One of Her Majesty's Counsel)

Instructed by: London Borough of Hackney Legal Services 1 Hillman Street London E8 1DY

For the Respondent Ms N Sivanandan in person

The remaining Respondents being neither present nor represented

**SUMMARY**

RACE DISCRIMINATION – Compensation

SEX DISCRIMINATION – Compensation

APPEAL

Council and a charity both supplied members to a recruitment panel which victimised the Claimant – Tribunal makes a joint and several award, declining to "apportion" liability to the Claimant as between the respondents

**Held**, upholding the Tribunal but for different reasons, that both were jointly and severally liable for the loss caused and that the Tribunal had no power to conduct such apportionment – **Prison Service v Johnson** (aka **Armitage**) [1997] ICR 275 doubted and *dicta* in **Way v Crouch** [2005] ICR 1362 not followed - In particular, the **Civil Liability (Contribution) Act 1978** affords no basis for apportionment of the liability of "concurrent discriminators" as between them and the claimant (as opposed to determining contribution as between themselves)CROSS-APPEAL

(1) No error of law in the Tribunal's award of £15,000 for injury to feelings

(2) Tribunal had wrongly regarded itself as precluded by Deane v London Borough of Ealing from making an award of exemplary damages; but there was in fact no basis in the Council's conduct for such an award

**THE HONOURABLE MR JUSTICE UNDERHILL****INTRODUCTION**
  1. This is a case with a complex and extraordinarily long history. We will need to set out some of that history for the purpose of the present appeal, but we will confine ourselves to those aspects which are necessary for an understanding of the issues before us.
  1. In mid-1999 the Claimant, who was a race equality adviser, applied for two posts with a body called Hackney Action for Racial Equality ("HARE"), which had been established to promote good race relations within the London Borough of Hackney. It was funded principally by the Commission for Racial Equality ("the CRE") and the Council, and it had in practice a very close working relationship with the Council. Its precise legal status was obscure. There was a company limited by guarantee of that name; but, as will appear, there was a doubt whether the activities of HARE were in fact carried on by that company rather than simply by an unincorporated association. It was managed by an Executive Committee, and had a paid full-time Director, Ms. Olivene Howell. The Claimant had herself previously been a member of the Executive Committee of HARE, but she had fallen out with it and had in the course of the previous year brought proceedings against it for racial discrimination. (Those proceedings were eventually decided in her favour in a decision, dated 15 April 2002, of an employment tribunal sitting at Stratford chaired by Mr. Buckley.)
  1. The Claimant was interviewed separately for the two posts on 30 June and 12 July 1999. The interview panels were mustered by Ms. Howell. The panels were similarly, though not identically, constituted: on each occasion all but one of the members were members of HARE's Executive Committee, but they were joined also by a Ms. Helen White. Ms. White was not on the Executive Committee of HARE nor an employee of it: rather, she was a Principal Contracts and Services Development Officer employed by the Council. One of her duties in that role was to work with and assist HARE.
  1. The Claimant was not selected for either post. She brought separate claims in the Employment Tribunal, subsequently consolidated, in which she claimed that her non-appointment was the result of discrimination contrary to both the Sex Discrimination Act 1975 and the Race Relations Act 1976, and more particularly of victimisation on account of her previous complaints (including the earlier tribunal proceedings against HARE). The Respondents to the claims were Ms. Howell and the members of each of the panels, as the primary discriminators, together with the Executive Committee of HARE (some, but not all, of whom were also primary Respondents), HARE (the company) and the Council, as being vicariously liable for the acts of the primary discriminators. The Claimant named both the Executive Committee and the company in the alternative because of the uncertainty as to HARE's legal status to which we have already referred. The basis of the vicarious liability of the Council was that it was the employer of Ms. White.
  1. The consolidated claims came on for hearing before an Employment Tribunal sitting at Stratford, chaired by Mr. Haynes. They were heard over three and a half weeks between April and June 2003. By a decision with extended reasons sent to the parties on 25 June 2003 the claims against the Executive Committee were dismissed, on the basis that the company was the correct Respondent so far as vicarious liability was concerned; but the claims of victimisation against the remaining Respondents were upheld. Each of the individual members of the panel was held to have been motivated by the fact of the Claimant's previous proceedings against HARE, and the company and the Council were held to be vicariously liable pursuant to sections 41 (1) of the 1975 Act and 32 (1) of the 1976 Act. A remedy hearing was directed.
  1. The Council appealed on the issue of its vicarious liability for Ms. White's conduct, but the appeal was dismissed by this Tribunal (Burton J presiding) on 18 November 2003. The Claimant cross-appealed against the dismissal of the claim against the Executive Committee. That cross-appeal was adjourned, but it was eventually allowed by this Tribunal (Burton J again presiding) on 6 July 2004, and the issue of liability as between the company and the Executive Committee was remitted to the Employment Tribunal. On 15 April 2005 a Tribunal sitting at Stratford, chaired by Mr. Lamb, held that the Executive Committee was also liable for the discrimination found by the Haynes Tribunal. (A similar adjustment was made in relation to the award of the Buckley Tribunal.)
  1. The Respondents for the purpose of the remedy proceedings fell in practice into two groups – on the one hand the HARE Respondents, i.e. the Executive Committee (both those who had sat on the interviewing panels and the other members who were vicariously liable for their acts), together with Ms. Howell; and, on the other, the Council Respondents, namely the Council itself and Ms. White. The HARE Respondents have at no stage taken any part in the remedy proceedings. HARE was disbanded in 2003 following a highly critical report from the CRE; and presumably the individual HARE Respondents did not believe that in practice they would be pursued. The Council was the only corporate Respondent and the only one which was plainly good for any substantial award of compensation. However, it was guilty of gross failure to comply with various case management orders from the Tribunal, and on 23 December 2004 Mr. Lamb made an order debarring it from defending. That left Ms. White as the only Respondent both able and willing to defend the remedy claim. Although she was at one stage represented by the Council's solicitor her trade union later took over her representation.
  1. On 13-15 June 2007 there was a hearing attended by the Claimant in person and by counsel for Ms. White (instructed by her union). It was again chaired by Employment Judge Lamb. It appears to have been intended originally as the definitive remedy hearing; but after discussion it was agreed that it should consider only the question of what award should be made against Ms. White. There was substantial legal argument as regards the correct approach, and the Tribunal in the event reserved its decision for over four months. Its eventual decision, promulgated on 30 October 2007 ("the 2007 decision"), was that liability should be apportioned between Ms. White and all the other Respondents, and that the award against her should be limited to £1,250 (plus interest) in respect of injury to the Claimant's feelings. No consideration was given as to what the total award of compensation, i.e. from all the Respondents, to the Claimant should be. We are bound to say that, assuming apportionment to be appropriate at all (which we consider below), it seems to us very doubtful whether it was legitimate to consider the liability of one Respondent without a determination of the total award or the relative responsibilities of the other Respondents; but that is not a matter which we need consider further here.
  1. The issue of remedy against all the remaining Respondents came before a Tribunal at Stratford chaired by Judge Lamb on 22 November 2008. The Claimant, as she has done throughout, appeared in person. None of the other Respondents were present or represented – the Council because it was debarred and the remainder from choice. By a decision which was not sent to the parties until 17 September 2009 – a most regrettable delay, for which the Judge very properly apologised – it was determined "that the Respondents [sc. all save Ms. White] are jointly and severally liable to pay the Claimant £421,415". The sum awarded was calculated as follows:

Financial loss: £262,026

Interest: £64, 281

Injury to feelings: £15,000

Interest: £12,027

Injury to health: £25,000

Interest: £7,125

Aggravated damages: £25,000

Interest: £7,125

Costs Disbursements: £5,736

£427,584Less:

Deduction for award made against Ms. White: £1,905

Net Total: £421,415
  1. The story thus summarised is a remarkable one, about which many questions could be asked. Most of those questions, however, do not arise on this appeal, where the issues, though important, are limited. What is before us is:

(1) the Council's appeal against the Tribunal's decision that the award be joint and several; and

(2) a cross-appeal by the Claimant contending that the award is too low in three specific respects.

There is no appeal by the Council against the amount of the award.

  1. The Claimant appeared before us in person. The Council was represented by Mr. Richard Clayton QC. There was a delay in the appeal being listed on account of the Claimant's ill-health. We regret the delay in our promulgating our own judgment, which reflects the pressure of work in this Tribunal.
**THE APPEAL**
  1. The Tribunal proceeded on the basis that it had a discretion whether to apportion liability for the total sum awarded between the different remaining Respondents

(i.e. in practice between the Council and the HARE Respondents), following the course already taken as regards Ms. White, or to make a joint and several award, i.e. one in which each Respondent was liable for the whole amount (save to the extent that recovery had already been made against another Respondent). In taking that approach, it expressly adopted its reasoning in the 2007 decision, where it had heard inter partes argument on the relevant principles. In that case it had held, relying on the decision of this Tribunal in Way v Crouch [2005] ICR 1362, that it was entitled to apportion liability between parties on the basis set out in section 2 of the Civil Liability (Contribution) Act 1978 – that is, according to what was "just and equitable having regard to the extent of [each party's] responsibility for the damage in question". Following that approach in the decision under appeal, it considered that it was not just and equitable to make any such apportionment and that it should thus impose joint and several liability. It gave its reasons for that decision at paras. 83-85 of the Reasons. We need not set them out here. The essence of its reasoning was that the Council had a very significant degree of influence over the decisions taken by the interviewing panels.

  1. The Council in its grounds of appeal contends that the factors relied on by the Tribunal did not support its decision not to make any apportionment. Mr. Clayton's skeleton argument endorses the Tribunal's self-direction on the law but argues that it failed to follow that direction properly. The Claimant, however, has taken the more fundamental point that the Tribunal had no power to apportion in the first place. The issue is only obscurely raised in her Respondent's Answer; but it is raised four-square in her skeleton argument, and Mr. Clayton did not contend that it was not open to her. Paras. 41-42 of her skeleton read as follows:

"41. Race and sex discrimination are statutory torts. The principle of joint and several liability is a relatively straightforward one. Where two parties cause damage/injury to claimant to a claimant jointly, it is not necessary to apportion blame in percentage terms.

42. The House of Lords summed up the concept simply in the following paragraphs taken from the House of Lords decision in Barker v Corus (UK) Plc and other cases, [2006] UKHL 20; [2006] 2 AC 572. Although the facts in the HL case are entirely different and have no bearing on this case, the following passages are salutary reminders of the basic principles:

At paragraph 43 of the HL case, Lord Hoffmann said this:

'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.'

While at paragraph 60, Lord Scott of Foscote provided this example:

'That brings me to the third question. It is a well established principle in the law of tort that if more than one tortfeasor causes the damage of which complaint is made, and if it is not possible to attribute specific parts of the damage to a specific tortfeasor or tortfeasors in exoneration, as to those parts of the damage, of the other tortfeasors, the tortfeasors are jointly and severally liable for the whole damage. A pedestrian on the pavement injured by a collision between two cars both of whose drivers were driving negligently can hold either driver liable for his or her injuries. The apportionment of liability between the two negligent drivers is no concern of the victim.'"

  1. In our view the Claimant's submission is entirely correct, and it could indeed be said to say all that needs to be said. However, since the point is an important one, and our conclusion involves departing from some previous authority, we should set out our reasoning at rather greater length.
  1. The starting-point is indeed, as the Claimant submits, that unlawful discrimination contrary to the 1975 and 1976 Acts is a statutory tort. It is settled that the approach to the measure of compensation for loss caused by unlawful discrimination should follow the ordinary principles of the law of tort – see Essa v Laing Ltd. [2004] ICR 746; and 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 (and are thus joint tortfeasors) or has contributed to the same loss by different such acts – we will use the label "concurrent discriminators" to cover both kinds of case.
  1. 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.

  1. 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. We are aware that over the years some employment tribunals have believed that they had a discretion to "apportion" compensatory awards between concurrent discriminators, in the sense that part of the claimant's overall loss was payable to him or her by one respondent and the other part by the other. The most recent reported case of this kind is Bullimore v Pothecary Witham Weld [2011] IRLR 18, where the concurrent discriminators were an employer who had given a damaging job reference because the claimant had done a protected act and a second, potential, employer who had withdrawn a job offer for the same reason. The tribunal had been invited to apportion liability as between them and had indicated its willingness to do so if the liability of both discriminators was established. On an appeal to this Tribunal on a different aspect of the decision neither party wished to raise the apportionment issue, but we expressed serious doubts whether the tribunal's proposed approach was correct: see at para. 26 (p. 22). That was a case where the discriminators had committed separate acts causing the same damage (though that makes no difference in principle – see para. 6 (1) above). But the more common situation is where the two discriminators are an individual employee and his employer who are jointly liable for the former's act of discrimination1. In such cases it is in our experience not uncommon for some apportionment to be made of the liability to the claimant, with the lion's share of the liability usually being apportioned to the employer, apparently - though this is not generally spelt out - on the basis that he has the deeper pocket. The present case is not one of apportionment between employer and employee respondents, but we appreciate that the principles discussed above appear to be inconsistent with the practice which we have referred to; and we ought therefore to consider any cases at appellate level in which it is endorsed. We are aware of only two such authorities2, which we will consider in turn.
  1. First, in Prison Service v Johnson [1997] ICR 275 – more often referred to as Armitage v Johnson (under which name it is reported at [1997] IRLR 162) – the applicant brought proceedings for racial discrimination against the Prison Service, which was his employer, and two individual prison officers, who were responsible for particular acts of discrimination, though for by no means all of the acts in respect of which the Service was liable (see p. 277D). The industrial tribunal awarded the applicant compensation of £20,000 for injury to feelings, with a further £7,500 by way of aggravated damages, and also made awards of £500 each against the two individual respondents. On the appeal to this Tribunal (Smith J. presiding) the Prison Service and the two individual officers (who were represented by the same counsel) contended that no awards should have been made against the individual officers. Counsel conceded that the tribunal had been "entitled as a matter of law to apportion the damages for injury to feelings between the three respondents" but submitted that this should only be done exceptionally. He contended that it was undesirable that individual employees should be pursued and that it was more convenient that a single award should be made against the employer on the basis of its vicarious liability (p. 285 A-C). Smith J. pointed out that the appeal on this point was academic since the awards against the individuals had been satisfied. But she said that it would have been dismissed in any event. She acknowledged that in the earlier case of Deane v London Borough of Ealing [1993] ICR 329 this tribunal (Wood P. presiding) had, in passing, declined to interfere with the decision of an industrial tribunal to make no award against an employee respondent3, but she said (at p. 285 E-F):

"… we do not think that this case is authority for the general proposition that wherever it is possible to order the employer to pay by finding him vicariously liable for his employee's act, it will necessarily follow that that should be done. In our view, it is a question for the discretion of the tribunal."

In Deane, she said, it had been appropriate to make no award against the individual employee because he had been acting "bona fide in the best interests of his employer", without any intent to discriminate (see p. 285 F); but that was not so in the instant case, where the conduct of the individual officers was seriously culpable. The point is dealt with very briefly (being indeed obiter), and there is no reference to the general principles under which liability in tort may be apportioned, in either sense of that term.

  1. Secondly, in Way v Crouch (referred to at para. 12 above) the claimant succeeded in a claim of sex discrimination against both the managing director of the company which employed her and the company itself. The tribunal awarded the full amount of compensation against both respondents "jointly and severally": what in practice that meant was that the claimant could recover for the entirety of her loss from either. The respondents contended that the tribunal had no power to make such an order.4 That submission was rejected, but Judge Birtles went on to say this, at para. 23 of the judgment (pp. 1371-2):

"We are conscious that this is the first decision of the Employment Appeal Tribunal which has squarely held that a joint and several award of compensation can be made in a discrimination case. We therefore think it will be helpful for employment tribunals if we set out some of the factors they must have regard to when considering making such an award. They are as follows:

(1) The practice of Employment Tribunals since 1975 confirms that in almost every case it will 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.

(2) If an Employment Tribunal considers it necessary to make a joint and several award of compensation then it should make clear its reasons for doing so.

(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 which provides that:

"(1) Subject to sub-section (3) below in any proceedings for contribution under Section 1 above the amount of the contribution recoverable from any person shall be such as may be found by the Court to be just and equitable having regard to the extent of that person's responsibility for the damage in question."

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 Section 2 (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".

(4) What Section 2 (1) of the 1978 Act makes clear is that it is not a permissible option for an Employment Tribunal to make a joint and several award of compensation because of the relative financial resources of the respondent. For example, an Employment Tribunal cannot make such an award because it believes that a company is more likely to be able to satisfy such an award or because a corporate respondent may be insolvent or in receivership or liquidation. That is to ignore the clear language of Section 2 (1) of the 1978 Act.

(5) In providing guidance to an Employment Tribunal about the meaning of Section 2 (1) of the 1978 Act, we can do no better than refer to the discussion in Clerk and Lindsell on Tort (17th edition 1995) at paragraph 4-63 (pages 154-155). The editors of that standard practitioners' work take the view that the word "responsibility" in Section 2 (1) of the 1978 Act refers both to the extent to which each tortfeasor caused the damage and to their relative culpability. There is extensive reference to the relevant case law in the footnotes to that paragraph of Clerk and Lindsell."

  1. 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 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)5, 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.
  1. 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 v Crouch 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.6
  1. Because the case of employer and employee respondents was not directly in issue before us, and was not specifically argued, we do not think that we should rule in terms that Armitage was (in this regard) wrongly decided or definitively disapprove the practice which it recognises. But we would encourage tribunals henceforward only to make "split awards" between such respondents (as regards the same injury or loss) if such an order is positively sought by one of the parties and if it is clearly demonstrated what proper legal basis (i.e. something other than the 1978 Act) exists for the discretion referred to in Armitage. We doubt if our reluctance finally to decide this point will create a difficulty in practice. Save in special circumstances like those of Way v Crouch, a representative acting, as will be usually the case, for both the employee and the employer respondents will not be able properly to seek any apportionment, since doing so will create a conflict between the interests of his two clients; and we therefore doubt how often the question will arise.
  1. Even if, contrary to our strong provisional view, there is some special rule governing the case where employer and employee are jointly liable for the same act of discrimination, we can see no basis for not applying the ordinary rules in a case like the present, where the concurrent discriminators – i.e. the HARE Respondents and the Council - are not employer and employee. The Tribunal had no power to make an apportionment such as the Council sought, and the appeal must be dismissed accordingly.
  1. 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 legislation7. 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.
**THE CROSS-APPEAL**
  1. The Claimant initially cross-appealed on three grounds, but she abandoned the first before us. We take the remaining two in turn.
INJURY TO FEELINGS
  1. The Tribunal approached its award for injury to feelings by reminding itself of the guidelines in Vento v Chief Constable of West Yorkshire Police (no. 2) [2003] ICR 318. It also reminded itself, by reference to HM Prison Service v Salmon [2001] IRLR 425, that since it was making a separate award for psychiatric injury it should take care to avoid double recovery. It then said:

"46. We accept that the two acts of discrimination for which the Claimant is to be compensated should be considered separately. We further accept that the second is twice as serious as the first. The first interview might have been considered as a single, isolated act. The second was repeat offending, in the face of express objection from the Claimant.

  1. We reiterate what we have set out above, that for a number of reasons which we have recited, the Claimant and the post worker post were a perfect fit for each other. It would have been the most congenial form of employment imaginable for the Claimant. Thereafter, having lost that opportunity for reasons which she perfectly well knew at the time were discriminatory, she was left adrift in a life of unemployment and ill health. The consequences continued for years.
  1. All of that said, the acts of discrimination concerned are in relation to a job application, and in that sense, are "one off". Vento states clearly that the top band of awards, between £15,000 and £25,000, should be awarded in the most serious cases, where there has been a lengthy campaign of discriminatory harassment. That is very different to the present case. We consider it to be beyond argument that the appropriate band in this case is the middle band, between £5,000 and £15,000. Our awards of £5,000 for the first incident and £10,000 for the second incident reflect our view that the seriousness of the position escalated, in respect of the effects upon the Claimant and her feelings. ..."
  1. The Claimant contends that the award should have comprised £10,000 for the first refusal and £15,000 for the second. She relies primarily on the fact that she had already been the victim of discrimination by HARE, for which the Buckley tribunal had awarded her £7,500, and she submitted that it was irrational that she should receive a lesser amount for the first of the two refusals with which we are concerned. We see no error here. There is no absolute reason why the Claimant should be awarded more for a second act of discrimination than a first. Awards for injury to feelings are not punitive, so an increasing "tariff" is not automatically appropriate. The question is what injury to feelings the Claimant suffered on each occasion. Inevitably, amounts can only be assessed in a very broad way, and there is no basis on which we could say that the valuation of the injury to feelings attributable to the earlier refusal at £5,000 was wrong simply because the Buckley tribunal had awarded rather more in respect of a different act. We would add that, while the Tribunal was no doubt formally correct to consider separately the two acts of discrimination in the present case, the truth is that they were of a similar character and very close together in time, and we doubt whether it is realistic to distinguish between the effects of each. A figure of £15,000 to reflect the impact of the two acts taken together seems to us unchallengeable in law. We remind ourselves, as did the Tribunal, that the Claimant has recovered separately for injury to her health; and indeed that she received a substantial award by way of aggravated damages.
  1. The Claimant also submitted that the fact the acts complained of were "one-off" did not mean that they necessarily fell outside the "top band" referred to in Vento. We are inclined to agree with that: the "Vento bands" are not rigid tramlines. But on the facts of the present case there was nothing which might, exceptionally, have pushed her claim into the top band, and we see nothing to suggest that the Tribunal felt itself constrained by any absolute rule.
  1. The Claimant made in her Respondent's Answer one or two particular points on the facts, but we need only say that they are incapable of undermining the Tribunal's award, which could not be dependent on minutiae about how the discrimination occurred.
EXEMPLARY DAMAGES
  1. Before the Tribunal the Claimant sought an award of exemplary damages. The Tribunal held that it had no power to make such an award because of the decision of this Tribunal in Deane v London Borough of Ealing (to which we have already referred in another context) that exemplary damages were only available in the case of "pre-1964 torts". The Claimant submitted, and Mr. Clayton accepted, that that was plainly wrong, since the reasoning in Deane was incompatible with the subsequent decision of the House of Lords in Kuddus v Chief Constable of Leicestershire Constabulary [2002] 2 AC 122 (to which the Tribunal had in fact been referred). Mr. Clayton also referred us to Ministry of Justice v Fletcher [2010] IRLR 25.
  1. Both parties were agreed that we should not, in the light of this error, remit the case to the Tribunal but that we should ourselves decide whether this was a proper case for the award of exemplary damages. The relevant principles are not controversial. We should award exemplary damages against the Council8 if, but only if, it has been shown to be guilty of oppressive, arbitrary or unconstitutional action and if the award otherwise payable would not suffice by way of punishment and deterrence (see Thompson v Metropolitan Police Commissioner.
  1. In her Notice of Appeal the Claimant relied essentially on an aspect of the Council's conduct which she submits was peculiarly outrageous. Following the receipt of the decision of the Haynes Tribunal the Council sought the advice of counsel, Mr. Daniel Tatton Brown, as to whether disciplinary proceedings should be instituted against Ms. White. His opinion was critical of the Tribunal's decision so far as Ms. White was concerned, and partly for that reason - but also for other reasons, including concerns about her health - he recommended that no action be taken against her. The Council accepted that recommendation. The Claimant describes the Council's conduct in this respect, and Mr. Tatton Brown's opinion, as "an insult not just to me but to the due process of law". She describes the Council as "ignoring", alternatively "defying", a binding decision of the Tribunal. The Tribunal (which considered this episode as part of its consideration of aggravated damages) said, at para. 60 of the Reasons, that "the Tatton-Brown document was a cynical excuse for failing to act upon the conclusions of the Employment Tribunal".
  1. We are bound to say that we are not ourselves sure that either the Claimant's or the Tribunal's criticisms of the Council in this regard are entirely fair. Clearly the Tribunal's findings against Ms. White were prima facie persuasive; but we doubt if the Council was obliged to treat them as binding in considering whether to take disciplinary action against her. If there was reason to believe that they were in fact wrong, it might be obliged, as a matter of justice to Ms. White, to disregard them in making that decision. The Tribunal appears to have thought that the Council could not genuinely have felt any such doubt; but we are not clear on what basis it made that finding (it had not of course heard evidence from the Council). If there was indeed genuine room for doubt we find it hard to see what was wrong in seeking counsel's opinion, and there was no reason whatever to believe that counsel did not advise in good faith. If that much is right, it is also hard to see what was wrong about accepting his recommendation not to discipline Ms. White.
  1. Ultimately, however, that is not a matter that we need to decide. Even if the criticisms of the Council in this regard are entirely justified, its conduct could still not possibly be regarded as of such a character to attract a claim for exemplary damages. It involved no oppressive exercise of authority against the Claimant. The Claimant had no direct interest in whether Ms. White was disciplined or not: her own rights had been fully vindicated. We can conceive that a bad-faith failure not to discipline Ms. White might be taken into account as regards aggravated damages, as indeed it was; but exemplary damages are another matter.
  1. The Claimant also complains that (apparently) the Council paid the amount of £1,750 awarded against Ms. White in the 2007 decision. Whether or not that was justified – which may not be a straightforward question – it was certainly not conduct against the Claimant which could attract an award of exemplary damages.
  1. The Claimant refers in her Respondent's Answer and skeleton argument to some wider background, including criticisms of the Council's race relations practices in a report made in 1997 by Lindsay Crawford QC and the issue of a non-discrimination notice by the CRE in 2003; and she submits that it is clear that the Council will not learn any lessons unless further it is punished. But none of that is material unless its conduct against her crosses the high threshold specified in the authorities, which it does not. We would also add that if the Council may be taught a lesson by a large award, the £421,000 awarded to the Claimant might be thought sufficient for that purpose: it is hard to see how a further £6,000 would make an appreciable difference.
**CONCLUSION**
  1. We dismiss both the appeal and the cross-appeal.

1 The basis of joint liability under the discrimination statutes is a little complicated, but it is clearly explained by Sedley LJ in Miles v Gilbank [2006] ICR 1297 at paras. 44-51 (pp. 1309-10). In short (taking the 1975 Act by way of example), the primary liability for discrimination (including harassment) is placed by the statute not on the individual but on the employer (see section 6 (1), (2) and (2A)), who will be vicariously liable for the acts of his employees (section 41 (1)), subject to the defence in section 41 (3). But the individual employee who does the actual act of discrimination is treated as having "aided" his employer - section 42 (2) - and an aider is treated as having himself done the unlawful act – section 42 (1). (See also Yeboah v Crofton [2002] IRLR 634, at paras. 71-2 (p. 641).) Thus, on a strict analysis, this is not the typical common law case where an employee is primarily liable for, say, an act of negligence, but the employer also attracts vicarious liability for that act. However, that makes no difference of substance, since, albeit by that rather complicated route, both employer and employee are treated as having done the act complained of and are accordingly jointly liable on general principles.

**

2 The Tribunal seems to have thought that Miles v Gillbank (see n. 1 above) was relevant on this aspect, but we cannot see that it is. The issue there was whether the appellant manager had, as a matter of fact, aided other employees to discriminate against the claimant. There was no issue as to whether, if she had, she was jointly liable with the employing company (of which she was in fact, though this is not material, the owner).

**

3 See Deane, at p. 332 G-H. It is interesting to observe that the respondent in question was Mr Bernard Crofton, who subsequently featured in Yeboah v Crofton (see n. 1 above). His fate was very different in that case, in that he was ultimately held to be personally liable on his own for the acts of discrimination committed by him, since his employer (by then Lambeth Borough Council) was able to establish the defence under section 32 (3) of the 1976 Act.

4 We note that the same counsel was acting for both respondents, which would normally have made it impossible for him to seek an apportionment; but the employer was a company owned and controlled by the individual respondent, and no doubt it was in his interests to push as much of the liability as possible onto the company.

**

5 Though admittedly there is a question whether that can be done in the same proceedings: see para. 25 below.

**

6 In fact the actual awards made in Armitage could possibly be upheld on conventional principles if the amounts awarded against the individual respondents reflected the injury to feelings caused by the particular acts for which they were held liable (and if that injury was also reflected in the larger award made against the Prison Service). But that was not Smith J's reasoning.

**

7 It should not be assumed that the position is the same in Scotland. The equivalent statute – the Law Reform (Miscellaneous Provisions) (Scotland) Act 1940 – is not identically worded.

**

8 It is in fact apparently the law that exemplary damages are only available in a case of joint liability where all defendants/respondents have been guilty of such behaviour – see McGregor on Damages (18th ed.) para. 11-045. But this point, which would appear to be fatal to the claim for exemplary damages, was not taken before us, and, as will appear, we do not need to rely on it.

Published: 27/05/2011 17:37

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