Hackney London Borough Council v Sivanandan

Where concurrent discriminators cause the same indivisible loss, each is liable to the claimant for the whole loss. The claimant’s recovery is not reduced by the relative responsibility or financial resources of the discriminators. The Civil Liability (Contribution) Act 1978 governs contribution between them, rather than apportionment of their liability to the claimant. Apportionment remains appropriate where different acts cause divisible damage. Injury-to-feelings awards are compensatory, not punitive, and the Vento bands are guidance rather than rigid limits. Exemplary damages require oppressive, arbitrary or unconstitutional conduct, together with insufficiency of ordinary damages for punishment and deterrence.

The claimant brought victimisation claims under the Sex Discrimination Act 1975 and the Race Relations Act 1976 after unsuccessful applications for posts with Hackney Action for Racial Equality. The employment tribunal found the individual panel members liable and held the charity and the Council vicariously liable.

Following lengthy remedy proceedings, the tribunal awarded £421,415 against the remaining respondents jointly and severally. The Council appealed against that form of liability. The claimant cross-appealed concerning injury to feelings and exemplary damages. The central issues were whether liability could be apportioned between concurrent discriminators, whether the injury-to-feelings award was legally excessive or inadequate, and whether exemplary damages were available on the facts.

1. Appeal dismissed. The tribunal had no power to apportion the claimant’s liability between the HARE respondents and the Council according to their relative responsibility for the same loss. Unlawful discrimination under the Sex Discrimination Act 1975 and the Race Relations Act 1976 is a statutory tort, and ordinary tort principles apply unless discrimination law requires otherwise.
2. Where concurrent tortfeasors cause indivisible damage, each is liable to the claimant for the whole damage. The Civil Liability (Contribution) Act 1978 permits contribution between tortfeasors under sections 1 and 2, but does not reduce any tortfeasor’s liability to the claimant. Relative culpability and ability to pay are relevant, if at all, to contribution between respondents.
3. Apportionment remains available where damage is divisible and a rational basis exists for attributing distinct loss to different discriminatory acts. The judgment also left open, without deciding, whether employment tribunals have jurisdiction to determine contribution claims between respondents.
4. The guidance in Armitage v Johnson was doubted, and the approach in Way v Crouch was not followed insofar as it treated the 1978 Act as supporting split awards. The tribunal’s joint-and-several award was therefore upheld, though for different reasons.
5. Cross-appeal dismissed. The £15,000 injury-to-feelings award disclosed no error of law. The Vento bands are not rigid tramlines, but the facts did not justify the top band, and the assessment was broad and evaluative.
6. The tribunal had wrongly treated Deane v London Borough of Ealing as excluding exemplary damages in post-1964 torts. Nevertheless, applying the principles in Thompson v Metropolitan Police Commissioner, the Council’s conduct was not oppressive, arbitrary or unconstitutional and ordinary damages were sufficient. No exemplary damages were awarded.

Both the appeal and cross-appeal were dismissed.

• Employment Tribunal, Stratford: found the discrimination claims established and, in the remedy decision sent on 17 September 2009, ordered the remaining respondents to pay £421,415 jointly and severally.
• Employment Appeal Tribunal: dismissed the Council’s appeal against joint and several liability and dismissed the claimant’s cross-appeal concerning injury to feelings and exemplary damages.