Barlow v P Stone (Disability Discrimination : Aiding and abetting)

An Employment Tribunal has jurisdiction under Disability Discrimination Act 1995 section 17A(1)(b) to determine a victimisation complaint against a fellow employee who is treated, by section 57, as having committed the employer’s unlawful act. Where an employee acts in the course of employment, section 58 may make the employer liable; section 57(2) then treats that employee as having aided the employer.

A claimant need not bring a concurrent claim against the employer before pursuing the employee. A pleaded allegation that the employee and employer are jointly liable for victimisation may sufficiently raise the section 57 basis of liability.

The claimant, a part-time driver, had previously brought disability-discrimination proceedings against his employer, AVCT. He then alleged that the respondent, a fellow employee and friend of an AVCT director, made a false complaint to the police in collusion with that director because of those proceedings.

The claimant brought a victimisation complaint against the respondent under the Disability Discrimination Act 1995. The Employment Tribunal at Nottingham dismissed it on 8 August 2011, holding that it lacked jurisdiction because the respondent was not the claimant’s employer. No claim concerning this incident had been presented against AVCT.

The appeal concerned whether sections 17A, 57 and 58 permitted the complaint to proceed against the fellow employee.

1. Appeal allowed. The Employment Tribunal erred in holding that it lacked jurisdiction over the complaint against the respondent. The matter was remitted to the same Tribunal for further case management and a hearing.

2. Section 17A(1)(b) of the Disability Discrimination Act 1995 expressly permitted a complaint against a person who, by section 57 or section 58, was to be treated as having committed unlawful discrimination under Part II. The alleged conduct, if proved, was capable of amounting to victimisation and thus discrimination for Part II purposes.

3. Under section 58(1), an employee’s act in the course of employment is treated as also done by the employer. If the respondent or the director had acted in the course of AVCT’s employment, AVCT could therefore be liable, subject to proof of that factual issue.

4. Section 57(2) supplied the answer to the Tribunal’s concern that the respondent was not the employer. An employee for whose act the employer is liable under section 58 is treated as having aided the employer to commit the act. Read with section 57(1) and section 17A(1)(b), that made a viable claim against the respondent.

5. The Act did not require the claimant also to present a claim against AVCT. The pleading’s allegation that the respondent and AVCT were jointly liable sufficiently raised the section 57 point. The alleged protected act was properly read as referring to the earlier proceedings against AVCT, whose complaints were principally directed at the director.

• Employment Appeal Tribunal: Allowed the claimant’s appeal and remitted the complaint to the same Employment Tribunal for case management and hearing.
• Employment Tribunal (Nottingham): On 8 August 2011, dismissed the victimisation complaint against the fellow employee for want of jurisdiction.