Hurst v Kelly

An employee may bring a statutory sexual-harassment claim against the fellow employee alleged to have committed the harassment without also proceeding against the employer. The employer’s potential vicarious liability and the employee’s personal liability as an aider and abettor are separate matters. A compromise agreement preventing proceedings against the employer does not remove the Employment Tribunal’s jurisdiction over the claim against the individual employee. The question whether the alleged conduct occurred in the course of employment, and the relevance of the compromise agreement to compensation, may remain matters for the merits hearing.

The claimant and respondent were employed by the same employer, with the respondent acting as the claimant’s line manager. After leaving employment, the claimant entered into a compromise agreement with the employer and brought a claim against the respondent alone, alleging sexual harassment at work-related functions.

The Employment Tribunal held that it lacked jurisdiction because the employer was not a party and dismissed the claim. The claimant appealed, raising whether a claim under the Sex Discrimination Act 1975 could proceed against a fellow employee without a claim against the employer.

1. Appeal allowed. The Employment Tribunal’s decision was set aside and the claim was remitted to a fresh Tribunal for determination on its merits.
2. Under s 41 of the Sex Discrimination Act 1975, the employer was vicariously liable for tortious acts of an employee towards a fellow employee bringing a claim under the Act. Under s 42(2), the employee who committed the act could be personally liable as an aider and abettor, even if the employer relied on the statutory defence in s 41(3).
3. The statutory scheme did not require the employer to be joined before the individual employee’s liability could be adjudicated. The heading to Part 2, describing discrimination by employers, did not prevent s 42(2) from imposing personal liability on the alleged tortfeasor.
4. The compromise agreement preventing the claimant from suing the employer did not affect the Tribunal’s jurisdiction. It might be relevant to compensation if the claim against the respondent succeeded, but it did not bar the proceedings.
5. The Tribunal should nevertheless consider at the merits hearing whether the respondent was acting in the course of his employment. If not, the employer could not have been vicariously liable for the conduct.
6. The approach in Barlow v Stone [2012] IRLR 899 was followed. Fecitt & Ors v NHS Manchester [2012] IRLR 64 concerned a different statutory scheme, in which fellow workers were not personally liable for victimising whistleblowers, and therefore did not support the Tribunal’s conclusion.

• Employment Tribunal: On 20 December 2012, the Tribunal dismissed the claim for want of jurisdiction because the employer was not joined.
• Employment Appeal Tribunal: The decision was set aside. The claim was remitted to a fresh Tribunal for determination on its merits.