London Borough of Hackney v Sivanandan & Ors (Rev 1)

This appeal concerned remedies only after findings of victimisation under the Sex Discrimination Act 1975 and the Race Relations Act 1976. The central legal principles were that (a) under s.41 of the 1975 Act (and s.32 of the 1976 Act) an employer is treated as having done acts of discrimination committed by an employee and is therefore jointly and severally liable to the claimant, (b) s.42 of the 1975 Act (and s.33 of the 1976 Act) deems an employee to have aided the employer, and (c) where damage is indivisible, concurrent tortfeasors are each liable to the claimant for the whole of that damage so that apportionment between them is not appropriate.

The Employment Tribunal erred in purportedly apportioning liability when it assessed the small award against the employee, Ms White, but that error did not justify limiting the Council's exposure. The Employment Appeal Tribunal correctly held that the damage was indivisible and that the Tribunal had no power to apportion the claimant's indivisible loss among the concurrent discriminators. The Court of Appeal dismissed the Council's appeal: the Tribunal's joint and several award against the Council and others was lawful, the earlier erroneous apportionment as to Ms White did not bind the later remedy hearing, and the award of aggravated damages was not shown to be so unreasonable as to require interference.

The claimant, Ms Natasha Sivanandan, sued in the Employment Tribunal alleging victimisation and discrimination arising from two unsuccessful job applications. The Tribunal (the Haynes decision) found HARE, certain HARE committee members and the London Borough of Hackney vicariously liable for victimisation at the interviews. Remedy was litigated in a series of hearings over many years.

Procedural history:

• The Tribunal found liability for victimisation and directed remedy hearings.
• At a first remedy hearing the Tribunal assessed a limited award against the employee Ms Helen White for injury to feelings (purporting to apply Way v Crouch), amounting to £1,905.41.
• At a subsequent remedy hearing, sitting with the Council debarred from defending for non-compliance, the Tribunal awarded the claimant £421,415 jointly and severally against the Council and several individual HARE respondents, including sums for financial loss, injury to feelings, injury to health and aggravated damages (but not exemplary damages).
• The Council appealed to the Employment Appeal Tribunal and lost. The EAT held the damage was indivisible and upheld joint and several liability, distinguishing cases where damage can be divided or attributed to specific tortfeasors.
• The Council obtained permission and appealed to the Court of Appeal; the Court heard argument on the scope for apportionment, vicarious liability, the Civil Liability (Contribution) Act 1978 and aggravated damages.

Nature of relief sought: The Council sought to reduce its financial exposure, either by remitting the remedy for reassessment so that its liability did not exceed the sum previously fixed against Ms White, or otherwise by apportionment of liability; it also challenged the award of aggravated damages.

Issues framed:

• Whether the Tribunal had power to apportion the claimant's indivisible loss between concurrent tortfeasors or whether each was jointly and severally liable for the whole.
• The legal effect of employer vicarious liability under s.41(1975)/s.32(1976) and aiding under s.42(1975)/s.33(1976) on the quantification of an employer's liability once an award has been made against an employee.
• The relevance of the Civil Liability (Contribution) Act 1978 to apportionment of liability to the claimant.
• Whether the award of aggravated damages against the Council was excessive or based on irrelevant material (notably the Tatton-Brown advice).

Reasoning and outcome: The Court accepted that the Tribunal had erred in purporting to apportion Ms White's liability at the first remedy hearing but held that that error did not bind the later remedy hearing or prevent full assessment against other joint tortfeasors. The EAT was right that where damage is indivisible concurrent tortfeasors are jointly and severally liable to the claimant for the whole loss and the 1978 Act concerns contribution between tortfeasors, not apportionment of the claimant's award. On aggravated damages the Court considered the Tatton-Brown episode but concluded that, even if that factor ought not to have been relied on, the cumulative facts supported the Tribunal's award and it was not shown to be outside the range of reasonable assessment. The appeal was dismissed.

Appeal dismissed. The Court held that the Employment Appeal Tribunal was correct to treat the victimisation loss as indivisible and to uphold the Employment Tribunal's joint and several award against the Council and the other respondents. An earlier error by the Tribunal in purporting to apportion liability as to Ms White did not limit the Council's liability because the later remedy hearing addressed the overall claims against the remaining respondents; the Civil Liability (Contribution) Act 1978 governs contribution between tortfeasors, not apportionment of a claimant's award. The award of aggravated damages was not shown to be unreasonable so as to require interference.

Appeal from the Employment Appeal Tribunal decision dated 27 May 2011 (reported at [2011] ICR 1374) dismissing the Council's appeal from the Employment Tribunal's remedy decision of 17 September 2009 (the Haynes remedy judgment). Permission to appeal to the Court of Appeal granted 7 October 2011; Court of Appeal judgment delivered 29 January 2013.