London Borough of Hackney v Ms Natasha Sivanandan and Others

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLord Justice Mummery,Lord Justice Rimer,Lord Justice Pitchford
Judgment Date29 January 2013
Neutral Citation[2013] EWCA Civ 22
Date29 January 2013
Docket NumberCase No: A2/2011/1649

[2013] EWCA Civ 22

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL

UKEAT/0075/10/CEA

THE HON MR JUSTICE UNDERHILL (President)

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Mummery

Lord Justice Rimer

and

Lord Justice Pitchford

Case No: A2/2011/1649

Between:
London Borough of Hackney
Appellant
and
Ms Natasha Sivanandan & Ors
Respondent

MR ROBIN ALLEN QC and MR THOMAS COGHLIN (instructed by Hackney Legal Services) for the Appellant

The Respondent appeared in person

Hearing date: 23 rd May 2012

Lord Justice Mummery

Introduction

1

It is 12 years since this discrimination dispute began. It arose out of two unsuccessful job applications at the end of the 20 th century. The case is now a 21 st century version of a 19 th century Chancery saga. And it is not over yet.

2

The reader of this judgment will be spared what Underhill J (the President) described in the Employment Appeal Tribunal (EAT) as the "complex and extraordinarily long history." It is a Dickensian narrative of allegations and counter-allegations, applications and cross-applications, misunderstandings, objections, complaints, hearings, adjournments, reviews, appeals and cross-appeals and repeated wrangling about procedure, case management matters, schedules, and even about the bundling and delivery of documents. On this appeal the parties continued, at the request of the court, to make additional written submissions after the hearing in order to clarify the evolving legal arguments.

3

For much of the time Ms Natasha Sivanandan (the claimant) has acted in person and unaided. She continues to do so. She is not an ordinary litigant in person, having been called to the Bar in 2006. She is not in independent practice.

4

In the part of the proceedings central to this appeal-the remedy hearings—neither side was represented in the ET: the appellant, London Borough of Hackney (the Council), was not represented, because it had been debarred by order from taking part; and the respondent was not represented, because she was acting in person. Decisions on remedy were made by the ET without any input from the Council. As the Council was not debarred from appealing, it was apparently able to advance arguments on the appeal as to why the decision below was wrong in law. On this appeal it is now represented by one of the most experienced leading counsel in this field. He did not appear in the EAT, where the Council was represented by a different leading counsel. We are grateful for the assistance of Mr Robin Allen QC.

5

Remedy is the only issue. The core question is whether, in its assessment of compensation, the Employment Tribunal (ET) acted on a fundamentally flawed view of the juristic nature of the Council's vicarious liability for acts of discrimination committed by its employee and the legal consequences flowing from that liability. Mr Robin Allen QC, on behalf of the Council, denounces the very substantial amount of compensation awarded against the Council, when compared with the very small amount awarded against its employee, as "inconsistent", "incoherent" and "disproportionate." On what principled basis, he asks, could the ET properly award more compensation against the employer than it had already awarded against the employee for whose acts of discrimination the employer was vicariously liable?

6

The Council appeals from the award that was made against it on the basis of its vicarious liability for the discriminatory acts of an employee, who was involved, together with other individuals who were not employed by the Council, in the handling of the claimant's two job applications. An award was also made against those other individuals involved in the discrimination.

7

The quantum of the compensation to be paid by the Council was assessed at £421,415, which is a very large amount of compensation in respect of discrimination in two job applications. It is also much bigger than the sum of £1,905.41 that the ET had, at an earlier hearing, assessed against the Council's employee, Ms Helen White. The ET assessed those dramatically divergent amounts at different points in the succession of ongoing remedy hearings.

8

The principal point of law argued on behalf of the Council in the EAT was whether the ET had the power, which it evidently thought it had and which it purported to exercise to a limited extent in the case of Ms Helen White, to apportion, as between the Council and Ms White, liability to the claimant. It was argued in the EAT that the ET should have awarded different amounts of compensation according to the relative degrees of responsibility for the loss suffered by the claimant in consequence of the discrimination.

9

The EAT's ruling was that no question of apportionment arose in this case, as the damage suffered by the claimant was indivisible. The statutory tort of discrimination was joint, so that each tortfeasor, whether the responsibility was vicarious, as it was in the case of the Council, or personal, as it was in the case of Ms White, was liable to the claimant for the full amount of that damage.

10

On this appeal the Council's case is based on the same objection to the ET's error of law in awarding against the Council a larger amount of compensation than was awarded against its employee, who committed the statutory tort of discrimination. However, as the case on appeal developed, there has been a shift in emphasis. Mr Allen QC abstains from challenging the correctness of the EAT ruling that there is no power to apportion liability to the claimant. While accepting that ruling, he attempts to confine the maximum financial exposure of the Council to the relatively small sum awarded against Ms White. In his skilful analysis of the ET's awards he draws attention to two significant aspects of the case.

11

The first aspect is one of apportionment. It is manifested in the "irreconcilable inconsistency" of the ET's treatment (a) of Ms White, in purporting to apportion her liability to the claimant by assessing the compensation to be paid by her as confined to injury to the claimant's feelings, and (b) of the employer Council, in refusing to apportion, as between it and other individuals involved in the discrimination, their liability to the claimant for full compensation.

12

The second aspect is the vicarious character of the Council's tortious liability to the claimant, combined with the legal consequence that the liability of the Council and Ms White to the claimant is joint along with all that that implies.

The appeal

13

The Council's appeal is from an order of the EAT dated 27 May 2011. The EAT dismissed the Council's appeal from the decision of the ET notified on 17 September 2009 awarding £421,415 jointly and severally against the Council and various individuals involved in the discrimination. The same ET had, at an earlier hearing on remedy, awarded the claimant the very much smaller sum against Ms Helen White, who is described by Mr Allen QC as the primary discriminator. She was involved in discrimination against the claimant by other individuals, who were not Council employees.

14

On 7 October 2011 I granted permission to appeal, which the claimant opposed (in writing). The arguments on the appeal raise questions on the construction of the provisions in the Sex Discrimination Act 1975 and the Race Discrimination Act 1976 (since replaced by the Equality Act 2010) relating to vicarious liability of employers for acts of discrimination by employees, the aiding of such acts and the effect that an award against an employee has on the amount of compensation that can properly be awarded against the employer vicariously liable for the same discrimination. Submissions were also made on the nature of joint liability for discrimination, and on the scope of application of the Civil Liability (Contribution) Act 1978 (the 1978 Act).

Background to remedy decisions

15

Before 1998 the claimant had been a race equality adviser. She had also been a member of Hackney Action for Racial Equality ( HARE), a charitable company limited by guarantee. It was partly funded by the Council, with which it has a close working relationship. The duties of Ms White, as Principal Contracts and Services Development Officer employed by the Council, included working with and assisting HARE.

16

The claimant was briefly a member of the Executive Committee of HARE, but she fell out with it and, as it was subsequently disbanded in 2003 following a critical report by the Commission for Racial Equality, it played no part in the remedy hearings.

17

Over the years the claimant brought a number of proceedings in the ET for discrimination. In 1998 she brought proceedings against HARE for race discrimination. In April 1999 she was successful in proceedings in the Central London County Court against the Council for race discrimination. She was awarded £2,500. On 17 May 1999 the claimant applied for the position of Training and Development Co-ordinator and Race Discrimination Caseworker at HARE. In her application forms the claimant referred to some other ET proceedings that she had brought and was continuing to pursue against the London Borough of Enfield.

18

On 20 June 1999 the claimant was interviewed for the Training position. Two members of HARE Executive Committee, who were joined by Ms White, conducted the interview. On 5 July 1999 the claimant was informed that her application for the Training position was unsuccessful.

19

On 12 July 1999 the claimant was interviewed for the Caseworker position by two members of the HARE Executive Committee and Ms White. On 21 July the...

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