Veitch Penny LLP - Exeter | Crediton, Devon

Case

Gilbank –v- Miles
Employment Appeal Tribunal - (14 September 2005)

Issues

(1)Sex discrimination;
(2)Compensation;
(3)Joint and several liability

Facts

Ms Gilbank had been employed as a trainee, and was promoted to the position of senior hair designer and trainee manager. Maxine Miles was the director of the company running the salon, Quality Hairdressing Limited, and was the majority shareholder. In February 2004 Ms Gilbank informed her employer that she was pregnant. The atmosphere at work changed. There was no attempt on the part of the employer to adjust her working environment and no risk assessment was undertaken. Ms Gilbank was told that she was not ill; but just pregnant and she was the object of unsympathetic remarks. Ms Miles ignored Ms Gilbank when approached to discuss her pregnancy and her doctor’s advice. Ms Miles also refused to allow another employee to fetch Ms Gilbank something to eat from a nearby shop as Ms Gilbank continued to work. There were inadequate facilities on the premises to keep food.

Ms Gilbank had made a claim of sex discrimination against the company employing her and against Ms Miles, as her manager. The Tribunal found that there was a catalogue of behaviour towards her on the part of Ms Miles and other managers which went beyond malicious. The Tribunal said, “It was an inhumane and sustained campaign of bullying and discrimination which could not, in the circumstances …….., be reasonably seen to have been accidental or merely insensitive. 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 callous disregard or concern for the life of her unborn child.” Accordingly, the Tribunal went on to find in Ms Gilbank’s favour and awarded her £25,000 for her feelings, £500 for personal injury and £3,550.60 for their failure to pay maternity pay.

Ms Miles appealed the decision to the Employment Appeal Tribunal (EAT). She argued that the Tribunal were wrong to hold her jointly and severally liable for the maternity pay earnings because it was a liability on the company, Quality Hairdressing Limited. She further argued that it was wrong for the Tribunal to make her jointly and severally liable for damages of £25,000 in respect of injury to feelings.

Decision

The EAT dismissed Ms Miles’ appeal. It was satisfied that Ms Miles was involved in the bullying and that by joining in she was aiding the unlawful discrimination. In respect of Ms Miles’ submission that the award of £25,000 was excessive, the EAT affirmed the Tribunal’s decision, considering it not to be excessive in the circumstances.

Comments

This case is a useful reminder that the employers and individual employees can be held liable in cases of discrimination. Section 42 of the Sex Discrimination Act 1975 provides for individuals to be liable if they have knowingly aided another person in an act of discrimination.

It is not usual practice to make an award against an individual but there are other cases where a Tribunal has done so. The significant issue in this case is that Ms Miles was effectively the owner of the business. The Tribunal also noted that she did not assist her case by deciding not to attend the Tribunal to give evidence and the Tribunal was very critical of this.

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