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

For a statutory tort of discrimination causing indivisible damage, concurrent tortfeasors, including an employer vicariously liable for an employee, are jointly and severally liable to the claimant for the whole loss. An employment tribunal cannot apportion that liability according to relative responsibility. The Civil Liability (Contribution) Act 1978 concerns contribution between tortfeasors and does not alter the claimant’s entitlement. An earlier, erroneous assessment limited to one individual does not determine or cap the liability of other respondents where it was expressly confined and further remedy issues were reserved. An appellate court will interfere with an employment tribunal’s compensation assessment only where no reasonable tribunal could have made it.

The claimant brought victimisation claims under the sex and race discrimination legislation after two unsuccessful job applications. Liability was established against the Council vicariously for its employee and against other respondents. In an earlier remedy decision, the Employment Tribunal awarded £1,905.41 against the employee alone for injury to feelings, treating her liability as apportioned. In a later decision it awarded £421,415 jointly and severally against the Council and the other respondents. The Employment Appeal Tribunal dismissed the Council’s appeal and the claimant’s cross-appeal, holding that the loss was indivisible and could not be apportioned; its judgment is reported at [2011] ICR 1374. The Council appealed, arguing that the earlier award capped its vicarious liability and challenging the award of aggravated damages.

The appeal was dismissed unanimously. The judgment of Lord Justice Mummery was agreed by Lord Justices Rimer and Pitchford.

1. Joint liability. Under the Sex Discrimination Act 1975 and the Race Relations Act 1976, an act done by an employee in the course of employment is treated as done by the employer as well as the employee. The employer and employee are therefore jointly and severally liable to the claimant. The statutory scheme does not distinguish, as against the claimant, between primary and vicarious liability. The employee is also deemed to aid the employer where the employer is liable for the employee’s act.
2. Indivisible damage and apportionment. Where concurrent tortfeasors cause indivisible damage by discrimination, each is liable to the claimant for the whole loss. Relative responsibility may be relevant to contribution proceedings between tortfeasors under the Civil Liability (Contribution) Act 1978, but it does not permit apportionment of the claimant’s award. The court overruled Way v Crouch [2005] ICR 1362 insofar as it derived such a power from section 2 of the 1978 Act. The principle concerning indivisible damage was consistent with Barker v Corus (UK) plc [2006] UKHL 20.
3. Earlier remedy decision. The first award against the employee was expressly confined to injury to feelings and was made with further remedy issues reserved. It did not determine the total compensation payable by the other joint tortfeasors. Although the Employment Tribunal erred in making that earlier apportionment, the error was irrelevant because the decision was not appealed and did not prevent the claimant pursuing the remaining claims.
4. Aggravated damages. An appellate court should interfere with an Employment Tribunal’s assessment of compensation only where no reasonable tribunal could have assessed the amount awarded. The Tribunal relied on the cumulative effect of several matters in awarding aggravated damages. The court considered that the independent report might have been irrelevant, but excluding that factor would not make the award unsustainable. The award against the Council therefore stood.

1. Court of Appeal (Civil Division): Dismissed the Council’s appeal against the award of compensation, including aggravated damages, on 29 January 2013: [2013] EWCA Civ 22.
2. Employment Appeal Tribunal: Dismissed the Council’s appeal and the claimant’s cross-appeal on 27 May 2011. It held that the damage was indivisible and that liability to the claimant could not be apportioned: [2011] ICR 1374.
3. Employment Tribunal: Earlier remedy decision awarded £1,905.41 against the employee alone for injury to feelings. A later decision awarded £421,415 jointly and severally against the Council and the other respondents.