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The Apportioning of Compensatory Awards in the ET

Meredith Hurst Friday, February 22, 2013

In London Borough of Hackney v Sivanandan and others, the Court of Appeal has upheld the Employment Appeal Tribunal's decision that no question of apportionment arose in this case, as damage suffered by the Claimant was indivisible. The EAT held that the Employment Tribunal had no power to apportion a compensatory award.

The Claimant was a member of Hackney Action for Racial Equality (HARE)'s executive committee until she brought a race discrimination claim against it in 1998. Subsequently, the Claimant applied for two jobs at HARE. The interviews for each position were separate and were conducted by 2 members of HARE's executive committee and 'W', a Council employee. When the Claimant was not successful for either post, she started proceedings, alleging victimisation under the sex and race discrimination legislation on account of her numerous previous discrimination complaints against the Council.

The Tribunal upheld the Claimant's claims of victimisation, finding that the conduct of the interviews was found to have been motivated by the fact of previous discrimination proceedings against HARE. The Tribunal held HARE and the Council vicariously liable for victimisation of the Claimant at the interviews for the two positions.

In a first remedy hearing the Tribunal apportioned liability of £1,905.41 for injury to feelings against 'W' personally. The tribunal relied on the Employment Appeal Tribunal's decision in Way and Anor v Crouch, that S.2 of the Civil Liability (Contribution) Act 1978 gave Tribunals a discretion to either make a joint and several award under which each respondent is liable for the full award or apportion liability between the different respondents to a claim.

At a second remedy hearing the Tribunal declined to apportion liability between the remaining HARE respondents and the Council and held that they were jointly and severally liable to pay the Claimant. The compensation to be paid by the Council was assessed at £421,415 a large amount of compensation in respect of discrimination of two job applications. This was a notably bigger sum than the £1,905.41 that the ET had, at an earlier hearing, assessed against the Council's employee, 'W'.  The Council appealed against the Tribunal's decision that the award should be joint and several, arguing that it should have apportioned liability.

The Employment Appeal Tribunal dismissed the Council's appeal, holding that Employment Tribunals do not have the power to 'apportion' compensatory awards between concurrent discriminators in respect of indivisible loss. Where loss is caused by a joint tort and it is not possible to attribute specific parts of the damage to a specific party then all the parties, are jointly and severally liable.

Apportionment of the award could only take place where there was a basis for distinguishing the damage caused by a particular party. In this case there was nothing to suggest that these general principles of tort law should be departed from in discrimination cases.

The Tribunal's decision not to apportion between the Council and other HARE Respondents was, therefore, legally correct, albeit on the basis that it had no power to make an apportionment, rather than because there was no case for apportionment on the facts, as the Tribunal had found.

The Claimant had not appealed against the award made against her personally, however, the Court confirmed that the tribunal had erred by apportioning the award against 'W'. It had purported to exercise a power to apportion her liability to the Claimant which it did not have. It was clear from the statute and common law that 'W' and the Council were jointly liable for the victimisation against the Claimant.

The Court rejected the Council's argument that its liability should be limited to the lesser amount that the Tribunal had incorrectly decided to apportion to 'W' at the first remedies hearing. It held that it was clear that, at that first hearing, the Tribunal did not have in mind to determine remedy against any of the parties other than 'W'. Thus, the damages for which the Respondents were jointly liable for was not altered by the Tribunal's originally apportioning the award.