Veitch Penny LLP - Exeter | Crediton, Devon

Case

Gilbank v Miles
Court of Appeal - 11 May 2006

Issues

(1) Sex Discrimination
(2) Compensation
(3) Joint & Several Liability

Facts

The Employment Appeal Tribunal decision in this case was previously reported in these bulletins in December 2005.

By way of background, Miss Gilbank was employed as Senior Hair Designer and Trainee Manager. Maxine Miles was the Director of the company running the salon, Quality Hairdressing Limited and was a majority shareholder. When Miss Gilbank advised her employer of her pregnancy, no adjustment was made to her working practices nor any risk assessment undertaken. No assistance was provided to her with breaks or for meals or rest. She was unable to keep ante-natal appointments. She was told "She was not ill, just pregnant". At first instance, Miss Gilbank's claim of sex discrimination was upheld. Not only had Miss Gilbank received less favourable treatment from her manager, Miss Miles, but she had also been subjected to unsympathetic remarks from other staff and detrimental treatment from other managers. For example, when Miss Gilbank suffered bleeding which she took to be a symptom of a miscarriage, one of the managers told her to deal with a client and see if the bleeding occurred later.

The Tribunal concluded:

"that on the balance of probability [Miss Miles] consciously fostered and encouraged a discriminatory culture to grow up which targeted [Miss Gilbank]. She did so by this behaviour and by the example she herself set other managers…, All in all, there was a catalogue of behaviour…on the part of [Miss Miles] and the other managers…which goes beyond malicious and amounts to downright vicious…. It was targeted, deliberate, repeated and consciously inflicted. It not only demonstrated to the Claimant a total lack of concern for the welfare of the Claimant herself, but a callus disregard or concern for the life of her unborn child".

The Tribunal awarded Miss Gilbank the sum of £25,000 for injury to feelings, £500 for personal injury and £2,550.60 for the failure to pay maternity pay and unpaid wages, etc.

Miss Miles appealed the decision to the Employment Appeal Tribunal arguing that the Tribunal should not have held her jointly and severally liable for the award and on the ground that the award for injury to feelings of £25,000 was excessive. The EAT dismissed the appeal and affirmed the Tribunal's earlier decision.

The matter was then referred to the Court of Appeal.

Decision

The main issue of the appeal centred on whether Miss Miles should have been made liable for the whole award when some of the acts of discrimination had been carried out by other managers. However, the Court of Appeal confirmed that Miss Miles was liable for the acts of her fellow employees because she had consciously encouraged them to discriminate.

There were two different approaches in reaching this decision. Lady Justice Arden felt that in order to "aid" an act of unlawful discrimination, the person must have done more than merely create an environment in which discrimination can occur. In this case, Miss Miles had assisted the other managers to act as they did because she had been dismissive of Miss Gilbank's complaints against other managers in their presence and in addition committed acts of discrimination herself. This made it clear that such acts were acceptable. Miss Miles could have stopped the discriminatory conduct of both herself and the managers by giving appropriate instructions and acted appropriately herself.

Lord Justice Sedley and Lord Justice Chadwick went further, finding that the actual encouragement itself is a detriment for which the employer must be responsible and for which the employer must be deemed to be liable. Lord Justice Sedley said "it would be remarkable if legislation which outlaws instructions, inducement and assistance to commit acts of sex discrimination inadvertently left out the encouragement or promotion of them".

The Court of Appeal further held that in respect of the award of £25,000 made for injury to feelings, they confirmed the Tribunal had been entitled to take the view that this was a most serious case which should attract an award at the upper limit as per the case of Chief Constable of West Yorkshire Police v Vento.

Comments

This is the first authoritative Judgment to hold that a manager can be liable personally to pay compensation not only for acts of discrimination or harassment which she herself commits, but also for aiding acts of discrimination carried out by other employees.


Rachel Billen - Associate Solicitor, Commercial Department at Veitch Penny.
Tel: 01392 278381, Fax: 01392 410247, Email: This e-mail address is being protected from spambots. You need JavaScript enabled to view it

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