Hurst v Kelly

A claimant may pursue a sexual-harassment complaint against a fellow employee without also bringing proceedings against the employer. Under the pre-2010 discrimination legislation, an employee could incur personal liability as an aider and abetter, while the employer’s potential vicarious liability did not make joinder of the employer a jurisdictional condition.

A compromise agreement preventing proceedings against the employer does not deprive the tribunal of jurisdiction over the employee. It may be relevant to compensation. The position differs from the former whistleblowing protection in Employment Rights Act 1996, which did not then make fellow workers personally liable.

The claimant and respondent were colleagues. The respondent was the claimant’s line manager. After her employment ended, the claimant made a compromise agreement with their employer which prevented employment-related claims against it.

She then brought proceedings against the respondent alone, alleging two acts of sexual harassment at work-related functions. The Employment Tribunal dismissed the claim on a preliminary issue. It held that it lacked jurisdiction because the employer was not a respondent.

The claimant appealed. The central issue was whether a former employee could bring a sexual-harassment claim against a fellow employee without proceeding against the employer.

1. Appeal allowed. The Employment Tribunal’s jurisdictional decision was set aside and the claim was remitted to a freshly constituted tribunal for a merits hearing.

2. The Tribunal had wrongly treated the employer’s absence as fatal. The EAT agreed with the approach in Barlow v Stone, [2012] IRLR 899. Under section 41 of the Sex Discrimination Act 1975, the employer could be vicariously liable for an employee’s tortious acts towards a fellow employee. Under section 42(2), the alleged wrongdoer could be personally liable as an aider and abetter. That liability was not removed even where the employer could rely on the statutory defence in section 41(3).

3. The alleged conduct pre-dated the Equality Act 2010, so the applicable complaint was harassment contrary to section 6(2A)(a) of the 1975 Act. The heading to Part 2, “Discrimination by Employers”, did not prevent section 42(2) attaching personal liability to the employee.

4. The compromise agreement was irrelevant to jurisdiction. It prevented a claim against the employer, but did not prevent the claim against the respondent. It could be relevant to any eventual compensation. A merits tribunal could still consider whether the respondent acted in the course of employment.

5. Fecitt & Ors v NHS Manchester, [2012] IRLR 64, concerned materially different statutory wording. At that time section 47B of the Employment Rights Act 1996 did not make workers personally liable for victimising whistleblowers. The EAT contrasted that position with discrimination legislation, which did provide for individual liability.

• Employment Appeal Tribunal: allowed the appeal, set aside the Employment Tribunal’s jurisdictional dismissal, and remitted the claim for a full merits hearing.
• Employment Tribunal: dismissed the sexual-harassment claim on 20 December 2012 for want of jurisdiction because the employer was not a party.