In London Borough of Hackney v Sd orivanandan ans, the ET found that the Council, members of the Hackney Action for Racial Equality (HARE) executive committee and a Council employee, W, were all liable for the discriminatory act against Sivanandan. The ET apportioned liability of £1,905 against W personally and held HARE and the Council jointly and severally liable to pay £421,415. The Council argued that the ET should have apportioned liability between them and HARE. The Court of Appeal agreed with the EAT that an ET has no power to apportion a compensatory award where numerous respondents were found jointly and severally liable for an indivisible act of discrimination,i.e. where it is not possible to attribute specific parts of the damage to a specific guilty party. Furthermore, although W had not appealed against the award made against her, the ET had made an error by apportioning the award against her.
Comment: Both an employer and a fellow employee can be made respondents and found liable in a discrimination claim brought by an employee. The case confirms that where more than one party is found responsible for the same discriminatory act, liability is joint and several for all the guilty parties and ET’s do not have the power of apportioning liability between employer and employee. This means the wronged party is entitled to recover the entirety of their loss from any of the guilty parties, a factor which employers need to communicate in diversity training and which needs to be taken into account where a claim has been lodged against multiple respondents.
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