Personal liability for acts of discrimination – a reminder

The recent case of Baldwin v Cleves School and others is a sharp reminder of the implications of personal liability provisions of the Equality Act 2010 (the “EA”).

The EA allows employers, agents, and employees to be named as respondents in acts of alleged discrimination. Whilst most cases of discrimination are raised against an employer, which is liable for what its employees do in the course of their employment, there is no barrier to a claim also being raised against those individuals themselves.  

This case concerned an individual employed as a newly qualified teacher from September 2014 until her resignation in March 2015. It was accepted before the Employment Tribunal (“ET”) that she was a disabled person for the purposes of the EA at the time of the alleged discrimination. The claimant raised multiple discrimination complaints about various matters that arose during the course of her employment, naming both another teacher, Ms Miller, and the headteacher, Mr Hodges, as respondents in addition to the school as her employer. 

The ET upheld two allegations of discrimination against the school in respect of direct discrimination (as a result of an email asking about ill health) and discrimination arising from disability (as a result of a comment in a report that the Claimant was “lacking integrity”). However, although the relevant acts which formed the upheld allegations were carried out by Ms Miller and Ms Hodges, the ET dismissed the claims against them. This was because it viewed their actions to be “misguided” and whilst discriminatory, it did not view that the actions were “anything other than attempts to address a complex situation” with a newly qualified teacher. 

As such, it was held that Ms Miller and Mr Hodges should not be liable for the acts of discrimination. 

An appeal was submitted to the Employment Appeal Tribunal (the “EAT”) on a number of aspects of the decision, including this determination of liability. The EAT considered carefully the drafting of the EA and upheld the appeal – the ET had erred in law and had no discretion to determine there was no individual liability when the acts complained of were found to be discriminatory. 

This meant that the claim required to be upheld against Ms Miller and Mr Hodges, irrespective of the finding that their actions were genuine, but misguided, attempts to address a complex situation.

The EAT noted that whilst findings of discrimination against named individual respondents “may be harsh”, the legislation is clear in its meaning and effect when it comes to findings of contraventions under the EA.

In most cases, the employer will accept the financial liability that inevitably flows from a finding of discrimination, but this is not required in law. Therefore, not only do individuals face being personally named as perpetrators of discrimination, but also financial awards made against them. Given that discrimination awards are uncapped, this could be a very unpleasant situation for any person to find themselves in. 

For training or guidance on discrimination and the complexities of the EA, please contact one of our specialist employment solicitors.