Murray v Maclay Murray & Spens LLP

Personal liability under sections 109 and 110 of the Equality Act 2010 requires an act by an employee or agent which is treated as an act of the employer or principal and which itself amounts to a statutory contravention. The provisions do not, without such an allegation, make agents personally liable merely because the employer or principal is alleged to have applied a discriminatory provision, criterion or practice.

Where a claimant's case attributes the relevant provision, criterion or practice only to the employer, and contains no allegation of an individual act amounting to indirect discrimination, there is no proper basis to join individual agents as respondents.

The claimant, a solicitor formerly employed by the respondent LLP, presented claims for wrongful dismissal and indirect sex discrimination. Her pleaded case alleged that the LLP applied one of three working-time provision, criterion or practice formulations which disadvantaged her because of childcare responsibilities.

After the respondent ceased practice, the claimant sought to join three former partners in its corporate department as additional respondents. She was concerned that the LLP might have insufficient assets. An Employment Judge refused the application because the alleged provision, criterion or practice was that of the respondent, not of the individuals.

The claimant appealed, contending that the partners were personally liable as agents under sections 109 and 110 of the Equality Act 2010. The central issue was whether her pleaded indirect-discrimination case provided a legal basis for joining them.

1. Appeal dismissed. The Employment Judge made no error of law in refusing to join the three former partners. The claimant's pleadings and oral submissions gave no reason why they should be personally liable for the alleged indirect discrimination.

2. Section 110 of the Equality Act 2010 imposes personal liability where an employee or agent does an act which, under section 109, is treated as an act of the employer or principal, and that act constitutes a contravention by the employer or principal. Section 109(2) correspondingly treats an act done by an authorised agent for a principal as also done by the principal.

3. The pleaded case did not identify an act by any partner which itself amounted to indirect discrimination. It alleged instead that the LLP applied one of three variants of a provision, criterion or practice. Accordingly, there was no act by an agent capable of satisfying section 109(2), and section 110 did not found personal liability.

4. The tribunal did not need to determine whether the application was late. Lady Stacey nevertheless indicated that, had there been a legal basis for it, she would not have refused it on prejudice grounds alone. The partners knew the relevant events, and the existing pleadings could have been answered by them.

• Employment Appeal Tribunal: appeal dismissed; the refusal by Employment Judge Lucy Wiseman, at a preliminary hearing in Glasgow on 15 December 2017, to join three former partners as respondents was upheld.
• Employment Tribunal: the Employment Judge refused the claimant's opposed application to add the three individuals to her indirect-discrimination proceedings.