Individual liability in discrimination cases

The law

Under the Equality Act 2010, employers bear primary liability for their own acts of discrimination committed against employees and other parties such as job applicants. In addition:

• Employers can be liable for discriminatory acts carried out by employees in the course of employment (section 109 Equality Act)
• In some cases, the employees who committed the discrimination can also be found personally liable for their actions (section 110 Equality Act)

What were the facts of the case?

In the case of Baldwin v Cleves School and others, the claimant, Ms Baldwin, was employed as a newly qualified teacher until her resignation in response to a number of incidents involving two colleagues. The claimant brought a claim for disability discrimination against the school, and also against the two colleagues as individual named respondents.

The Tribunal found that the school was liable for two acts of discrimination carried out by the named respondents. However, the Tribunal dismissed the claims against the individual respondents, finding that the discrimination resulted from their misguided attempts to resolve a difficult situation.

The Claimant appealed to the EAT.

EAT decision

The EAT allowed the appeal. It found that the Tribunal had been wrong to exercise discretion in respect of whether individual liability had been engaged. A person will be liable under section 110 where they:

• Are an employee or agent of the employer respondent
• Committed a discriminatory act in the course of their employment
• Did not reasonably rely on having been told by the employer that the discriminatory act was in fact lawful

The EAT confirmed that Tribunal has no power to apply its discretion in order to excuse individual named respondents from liability where the above conditions are satisfied. The Tribunal's power to apply discretion arises at the remedy stage, where the Tribunal 'may' make a declaration about the rights of the parties, order compensation or make an appropriate recommendation. On this basis the EAT substituted a finding that the individual named respondents had breached section 110 Equality Act.  

Learning points for employers

This case acts as a reminder that individual employees can be held liable for their own conduct under the Equality Act. However, where it is accepted an individual was acting in the course of their employment, the employer will often accept financial responsibility for paying any compensation the Tribunal may award.

For more information or advice, please Sharmin Chowdhury in our Employment team on 07900  570 032, or complete the form below.