Bungay & Anor v Saini & Ors (Race Discrimination : Vicarious liability)

Directors or office-holders may be agents for discrimination purposes where they exercise authority to manage an organisation, even though they were not authorised to discriminate. The relevant authority is authority to perform an act capable of being done lawfully, construed purposively under the Employment Equality (Religion or Belief) Regulations 2003.

Where concurrent wrongdoers contribute to the same indivisible discrimination loss, each may be jointly and severally liable for the whole damage. Relative responsibility concerns contribution between wrongdoers, not apportionment against the claimant. Aggravated damages may reflect sufficiently serious post-employment conduct connected with the discriminatory campaign.

The claimants were employees of the All Saints Haque Centre. The Employment Tribunal found that the appellants, who were directors of the Centre, had participated in discriminatory treatment, unfair dismissals and harassment. At the remedies hearing, the Centre and the appellants were held jointly and severally liable for specified discrimination compensation and aggravated damages.

The Centre was in compulsory liquidation and took no part in the appeal. The appellants challenged their status as agents, the joint and several award, and the Tribunal’s consideration of post-employment complaints to the police which had led to the claimants’ arrest and detention.

1. Appeal dismissed. The appellants were agents of the Centre within regulations 22 and 23 of the Employment Equality (Religion or Belief) Regulations 2003. The agency question depended on whether, when carrying out the discriminatory acts, they were exercising authority conferred by the Centre.
2. The authority required was authority to perform an act capable of being done lawfully, rather than authority to discriminate. This construction was required to give the discrimination legislation practical and purposive effect. The appellants were managing the Centre as directors under the Board’s authority and acted in the Centre’s name. The Tribunal was therefore entitled to find them liable as agents, notwithstanding that their conduct was discriminatory.
3. Regulation 23(2) deemed an employee or agent for whose act the principal was liable under regulation 22 to have aided the principal’s unlawful act. The appellants could accordingly be liable personally even though they were not employees of the Centre.
4. The joint and several award was lawful. The appellants had acted together and contributed to the same indivisible damage. Following Gilbank, Munchkins and London Borough of Hackney v Sivanandan, the claimant could recover the full damage from any liable concurrent tortfeasor. Way v Crouch was disapproved because relative responsibility was relevant to contribution between wrongdoers, not to the claimant’s recovery.
5. The Tribunal was entitled to take account of the appellants’ subsequent unfounded and malicious complaints to the police when assessing aggravated damages. The post-employment conduct was causally connected with the discriminatory campaign. An alternative remedy in tort did not prevent the Employment Tribunal from compensating the aggravating conduct within the discrimination proceedings.

• Employment Tribunal, Birmingham — liability decision registered 3 March 2008: findings of unfair dismissal and discrimination against the Centre and the appellants.
• Employment Appeal Tribunal — UKEAT/0227/08, decision handed down 24 October 2008: Mr Saini’s appeal allowed and harassment on grounds of religion found.
• Employment Tribunal — remedies decision sent 1 April 2010: compensation and aggravated damages awarded against the Centre and appellants jointly and severally.
• Employment Appeal Tribunal — present appeal dismissed.