C Baldwin v Cleves School & Ors

Where the conditions in section 110 of the Equality Act 2010 are met, an employment tribunal has no discretion to decline to find that an employee or agent has contravened that provision. Personal liability is not ancillary to employer liability under section 109. It is unaffected by whether the employer admits liability, relies on the reasonable-steps defence, or undertakes to meet any award.

An allegation of unprofessional conduct is not, without more, a protected act under section 27. In assessing harassment, tribunals must apply both the claimant's perception and the objective reasonableness requirement, while avoiding an overextension of the statutory language to minor upset.

The claimant, a newly qualified teacher, brought disability discrimination, victimisation and harassment claims against her former school and two employees. The employment tribunal upheld two discrimination complaints against the school under section 109 of the Equality Act 2010, but dismissed the claims against the individual respondents.

On appeal, the claimant challenged that dismissal, the tribunal's failure expressly to address an alleged protected act during a conversation about an email to her tutor, and the rejection of a harassment complaint concerning an email from the head teacher. The appeal raised the proper construction of section 110 and whether the tribunal's subsequent clarification could cure an omission in its written reasons.

1. Appeal allowed in part. The Employment Appeal Tribunal substituted findings that the third respondent contravened section 110 in relation to the direct disability discrimination committed through her request for information from the claimant's tutor, and that the second respondent contravened section 110 in relation to the discrimination arising from disability in the claimant's NQT report.

2. Section 110(1) sets exhaustive conditions for personal liability in the employment context. An employee or agent contravenes the provision where they act in the course of employment, the act is treated as done by the employer under section 109, and it amounts to an employer contravention of the Equality Act 2010. Subject to the express exception in section 110(3), the tribunal has no residual discretion to refuse that finding.

3. The tribunal erred by treating the individuals' conduct as misguided attempts to manage a difficult situation and by regarding employer liability as a reason against personal liability. Parliament had removed the predecessor requirement that the employee knowingly aided the unlawful act. Intention was therefore not required. Sections 109 and 110 provide distinct routes to primary contraventions, and remedial discretion arises only after liability has been found.

4. The tribunal had omitted the 29 October 2014 conversation from its original reasons. Its response to the EAT adequately explained its existing conclusion: the claimant had complained of confidentiality and unprofessional conduct, but had not alleged a contravention of the Act. That was insufficient to constitute a protected act under section 27(2)(d). The victimisation ground failed.

5. The harassment ground also failed. The email was not clearly pleaded as an act of harassment. In any event, the tribunal was entitled to find that, despite causing serious concern and dismissing the claimant's concerns, it did not necessarily have the statutory purpose or effect required by section 26. The perversity threshold was not met.

• Employment Appeal Tribunal: Allowed ground 1 and substituted findings of contraventions by the individual respondents under section 110 of the Equality Act 2010: [2024] EAT 66.
• Employment Tribunal: Judgment sent to the parties on 2 January 2021. It upheld two discrimination claims against the school but dismissed the individual-liability, victimisation and harassment claims.