Veitch Penny LLP - Exeter | Crediton, Devon

Case

Peter Way & Intro-Cate Chemicals Limited v Angela Crouch

Issues

(1) Sexual Discrimination
(2) Compensation
(3) Joint and Several Liability

Facts

Miss Crouch made a claim for sexual discrimination and wrongful dismissal at the Employment Tribunal against her employer Intro-Cate Chemicals and its Managing Director Mr Way.

At first instance the Employment Tribunal awarded Miss Crouch £40,866.02 by way of compensation for sex discrimination, against the company and Mr Way on a joint and several basis. This meant that both the company and the discriminator, Mr Way, would be responsible for the full award. By structuring the compensation this way, an employee would be able to their full compensation from the discriminator if their employer was insolvent.

An appeal was made to Employment Appeal Tribunal (EAT) on a number of points; the main issue was whether the Employment Tribunal had the power to make an award of compensation on a joint and several basis in a sex discrimination case.

Decision

The EAT considered the particular wording of Section 65 and 66 of the Sex Discrimination Act 1975. In their view, the language of the statute made it quite clear that the Employment Tribunal could make an award on a joint and several basis. It noted that there was similar language in the Race Relations Act 1975, the Disability Discrimination Act 1995, the Employment Quality (Religion or Belief) Regulations 2003 and the Employment Equality (Sexual Orientation) Regulations 2003.

As this was the first decision by the EAT finding that the joint and several award of compensation can be made in a discrimination case, the EAT set out a number or guidelines to assist Employment Tribunals when considering to make such an award. It also emphasised that the Tribunal had no power to make a joint and several award for compensation in an unfair dismissal case due to the particular wording of the Employment Rights Act 1996.

Comments

Prior to this case the Tribunal would order a large proportion of the award to be paid by the employer and the token few hundred pounds against the employee committing the discrimination or harassment.

This judgment now means that the Employment Tribunal has a power to make both the employer and the discriminator/harasser responsible for the full amount of the award. In practice, this means that employers could seek a contribution from the discriminating employee for a percentage, if not all of the award. In order to do so, the tribunals were advised to specify the percentage apportionment of blame between the discriminator and the employer. Once the employer has paid the full amount ordered, it can recover the discriminator’s contribution from the discriminator’s employee. The EAT noted that such an apportionment of blame should be on the grounds of culpability between the two parties and not on their relative financial strengths.

Rachel Bickle – Associate Solicitor, Commercial Department at Veitch Penny.
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