Malcolm Keen considers apportionment in discrimination claims
Two recent Employment Appeal Tribunal (EAT) decisions have cast doubt on previous authority relating to joint tortfeasors, and provided guidance relevant not only to discrimination claims but also to tort more generally. In London Borough of Hackney v Sivanandan [2011] IRLR 740, the claimant successfully brought claims for sex and race discrimination against a race relations body. The race relations body and the local authority (with which it worked) were held vicariously liable. The respondents fell into two groups:
- those associated with the race relations body; and
- the local authority and its employee.
A remedy hearing decided that liability should be apportioned between the local authority employee and the other respondents. The award against the local authority employee should be limited to £1,250 in respect of injury to the claimant’s feelings.
In relation to the other respondents, the tribunal proceeded on the basis that it had a discretion whether to apportion liability between the local authority and the race relations body respondents, or to make a joint and several award—in which each respondent
