Tribunals Cannot Apportion Liability to Pay Discrimination Compensation

Tribunals do not have power to apportion liability to pay discrimination compensation where two respondents are found liable for the same discriminatory act.  Both respondents are jointly and severally liable for any award of compensation and the claimant can recover in full against either. 

In London Borough of Hackney v Sivanandan, S brought discrimination claims after she was not shortlisted for a role.  As well as claiming against London Borough of Hackney (“Hackney”), she also brought claims against individuals involved in the decision not to shortlist her.  She succeeded in her claim and the tribunal ordered that all of the respondents should be jointly and severally liable to pay the compensation awarded, meaning they were all liable to pay S the full amount of her claim. 

Hackney appealed, arguing that it should not be liable for the full amount of S’s compensation. The tribunal should have apportioned liability between the parties, rather than making a joint and several award.  The Court of Appeal disagreed.   Liability in tort cannot be apportioned and S was entitled to recover in full against whichever respondent she chose.

The Civil Liability (Contribution) Act 1978 (“CLCA”) provides a mechanism for a respondent who has paid the full amount of a joint and several award to claim a contribution from another respondent.   According to the Court of Appeal in this case, it does not entitle a tribunal to apportion liability to a claimant.  This means that in cases where two respondents are found jointly and severally liable to pay compensation, the claimant is entitled to recover from either of them.  It will then be for the respondent who has paid to seek a contribution form the other under the CLCA. 

This is not that easy.  The CLCA claim would need to be brought in the civil courts (as employment tribunals do not have jurisdiction to hear such claims).  There is also a question mark over whether the CLCA covers contribution claims in respect of employment tribunal discrimination claims.    If it does not, that would leave a joint respondent with no ability to recover from other respondents. Unfortunately the Court of Appeal did not consider that issue.    

The decision in this case will apply equally to other types of claim where respondents can be made jointly and severally liable to pay an award of compensation.  An obvious example is an award in respect of a transferor’s failure to inform and consult on a TUPE transfer where the transferee can be held jointly and severally liable.