Liability of individuals in discrimination cases

The recent case of Baldwin v Cleves School and Others offers guidance when employees are personally liable for acts of discrimination when the employer is held to be liable for discrimination and other breaches of the Equality Act 2010.

Background

The Claimant was employed as a newly qualified teacher (NQT) at the Respondent, Cleves School, from September 2014 to March 2015. The Claimant suffered significant health issues and was disabled within the meaning of the Equality Act. At the time she accepted her role, she had not yet completed her PGCE because of ill health and had several absences during her induction year.

During the start of her induction year, the Claimant was assigned a mentor, Ms Miller, another teacher at the school. Following the Claimant’s absences, Ms Miller corresponded with the Claimant’s PGCE tutor, Ms Sternstein, in connection with her targets and development requirements, which the Claimant felt to be unprofessional. Furthermore, the headteacher, Mr Hodges, completed an NQT report stating that the Claimant had not always acted with integrity, which the Claimant felt was an unfair representation of her and discriminatory.

The Claimant resigned and brought claims for disability discrimination against her employer and two members of staff, Ms Miller and Ms Hodges. The Employment Tribunal (ET) found that the school was liable for the two acts of disability discrimination but dismissed the claims against the two members of staff.

The ET held that whilst the school was liable in its capacity as an employer, it rejected the claims against the named individuals, as it held that the School was held to be vicariously liable.

The Legal Bit

In a work environment, a duty is placed on an employer not to discriminate against any of its employees, directly, indirectly or arising from a disability or indeed any other protected characteristic. Equally, the employer has the duty not to harass or victimise any of its employees. Sections 109 and 110 of the Equality Act 2010 provides a framework of when liability can be attributed to others / individuals.

“109 Liability of employers and principals

(1) Anything done by a person (A) in the course of A's employment must be treated as also done by the employer.

(2) Anything done by an agent for a principal, with the authority of the principal, must be treated as also done by the principal.

(3) It does not matter whether that thing is done with the employer's or principal's knowledge or approval.

(4) In proceedings against A's employer (B) in respect of anything alleged to have been done by A in the course of A's employment it is a defence for B to show that B took all reasonable steps to prevent A- (a) from doing that thing, or (b) from doing anything of that description.

110 Liability of employees and agents

(1) A person (A) contravenes this section if-

(a) A is an employee or agent,

(b) A does something which, by virtue of section 109(1) or (2), is treated as having been done by A's employer or principal (as the case may be), and

(c) the doing of that thing by A amounts to a contravention of this Act by the employer or principal (as the case may be).

(2) It does not matter whether, in any proceedings, the employer is found not to have contravened this Act by virtue of section 109(4).

(3) A does not contravene this section if-

(a) A relies on a statement by the employer or principal that doing that thing is not a contravention of this Act , and

(b) it is reasonable for A to do so


(4) A person (B) commits an offence if B knowingly or recklessly makes a statement mentioned in subsection (3)(a) which is false or misleading in a material respect.


In summary, an employee or agent of the employee can be held liable if they do something which amounts to a contravention of the Equality Act 2010 unless they have been led to believe by their employer that they haven’t done anything wrong. This is an objective test of what a reasonable person would consider to be an action (or failure to act) that would amount to an infringement of equality legislation.

Appeal to the Employment Appeal Tribunal (EAT)

The Claimant appealed the decision. The EAT considered that if an employee or agent has been found to have acted in such a way that amounts to a breach of the Equality Act 2010, then the ET must also find those individuals liable, regardless of whether the employer is found liable. It has no discretion not to find a contravention in these circumstances under section 110. The members of staff at the school in this case were not relying on the defence that they believed their conduct to be acceptable, nor had they shown any evidence that the school condoned their behaviour.

The EAT suggested that there are many reasons for allowing liability to pass to individuals. It emphasised the clear wording of the legislation, which states that a person contravenes section 110 in the circumstances where (a)-(c) apply. There is no discretion. Additionally, the amendment to the legislation to remove “knowingly” allows a broad scope of liability on employees and agents who act on behalf of their employer. Furthermore, the EAT highlighted the practical reasons for extending liability to employees and agents, such as ensuring that the Claimant has an available remedy should the employer subsequently dissolve or go into liquidation.

Conclusion

The EAT’s decision sends a strong message to staff whose actions amount to discrimination. It is important that employees are made aware of the potential impact if they engage in discriminatory conduct. It important that all employees are up to date on the equality, diversity and inclusion training and are encouraged to act responsibly and professionally in their interactions with their colleagues.

Our employment team can provide expert advice to employers on supporting staff with disabilities and also offer training to employees in terms of creating an inclusive and equitable working environment to ensure compliance under the Equality Act. If you have any questions then please contact Sejal Raja on Sejal.raja@weightmans.com