Miles v Gilbank

A manager who knowingly fosters and encourages a sustained, targeted campaign of discriminatory bullying positively subjects the employee to a detriment. The manager’s conduct may be attributed to the corporate employer and give rise to the manager’s personal liability under the Sex Discrimination Act 1975.

For direct liability for aiding discrimination, the tribunal must identify the particular unlawful act and the conduct which knowingly assisted it. Merely creating an environment in which discrimination can occur is insufficient.

Compensation bands for injury to feelings are flexible guidance. An appellate court may interfere only where the award discloses an error of law, including because it is manifestly excessive.

An employment tribunal found that a salon company and its director and manager had subjected a pregnant employee to a sustained campaign of sex discrimination. The director committed discriminatory acts herself and consciously fostered and encouraged similar conduct by other managers. The tribunal held the director and company jointly and severally liable and awarded £25,000 for injury to feelings, together with unpaid wages, maternity pay and personal injury compensation.

The Employment Appeal Tribunal dismissed the director’s appeal. She appealed to the Court of Appeal, contending that she could not be liable for injury caused by the other managers’ acts and that the injury-to-feelings award was manifestly excessive. The central questions concerned personal liability under sections 6, 41 and 42 of the Sex Discrimination Act 1975 and the proper application of the compensation guidance in Vento v West Yorkshire Police [2003] ICR 318.

1. Appeal dismissed unanimously. The tribunal was entitled to hold the director jointly and severally liable with the corporate employer. Its £25,000 award for injury to feelings disclosed no error of law or principle.

2. Arden LJ held that direct liability for knowingly aiding an unlawful act under section 42(1) of the Sex Discrimination Act 1975 required identification of the particular discriminatory act and the conduct which assisted its commission. Following Anyanwu v South Bank Student Union [2001] ICR 391, merely creating an environment in which discrimination could occur was insufficient. The director had gone further: she dismissed complaints in the presence of the other managers, joined in conduct which encouraged them, set a discriminatory example and possessed the power to stop their conduct. The tribunal could therefore find that she knowingly assisted their discrimination.

3. Sedley LJ reached the same outcome principally through section 6(2). The director did more than tolerate discrimination. By fostering and encouraging it, she positively subjected the employee to a detriment. Section 41(1) attributed that conduct to the company. If further attribution were required, sections 42(1) and 42(2) rendered the director personally liable for aiding the company’s unlawful act. Simple toleration might raise different questions.

4. Chadwick LJ considered that these approaches did not differ in substance. Knowingly fostering and encouraging a sustained and targeted campaign of discriminatory bullying was itself an unlawful act under section 6(2). The conduct was attributed to the employer by section 41(1), while sections 42(1) and 42(2) treated the director as having aided the employer and therefore as personally liable.

5. The compensation bands identified in Vento are flexible guidance rather than rigid rules. The repeated, deliberate and distressing acts, including conduct affecting concern for an unborn child, justified placing the case at the upper limit for the most serious cases. The award was not manifestly excessive.

1. Court of Appeal (Civil Division): Dismissed the director’s appeal and upheld both her joint and several liability and the £25,000 award for injury to feelings: [2006] EWCA Civ 543.
2. Employment Appeal Tribunal: Dismissed the director’s appeal, holding that the employment tribunal had been entitled to find that she aided unlawful discrimination and that the compensation award disclosed no error of law.
3. Employment tribunal: Upheld the employee’s sex discrimination complaint and ordered the director and corporate employer jointly and severally to pay £29,050.60, including £25,000 for injury to feelings.