London Borough of Hackney v Sivanandan & Ors (Rev 1) [2013] EWCA Civ 22

[2013] EWCA Civ 22Case No A2/2011/1649
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
UKEAT/0075/10/CEA
THE HON MR JUSTICE UNDERHILL (President)
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 29/01/2013
Before
LORD JUSTICE MUMMERYLORD JUSTICE RIMERLORD JUSTICE PITCHFORD
Between
LONDON BOROUGH OF HACKNEYAppellantMS NATASHA SIVANANDAN & ORSRespondent
MR ROBIN ALLEN QC and MR THOMAS COGHLIN (instructed by Hackney Legal Services) for AppellantThe Respondent appeared in person for in personHearing Hearing date: 23 rd May 2012
Approved Judgment

Introduction

[1]It is 12 years since this discrimination dispute began. It arose out of two unsuccessful job applications at the end of the 20th century. The case is now a 21st century version of a 19th 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 claimant was informed that her application for the Caseworker position was unsuccessful.[20]On 28 September 1999 and 4 October 1999 the claimant started proceedings alleging victimisation under the sex and race discrimination legislation on account of her previous discrimination complaints. The proceedings against HARE, Ms White and the Council were later joined together. As will be explained, the claimant established liability for victimisation against the Council (see [39] of the Extended Reasons notified on 23 June 2003), Ms White and, ultimately, the HARE individuals involved.[21]On 15 April 2002 the ET notified to the parties its decision (the Buckley decision) on the claimant’s separate 1998 complaint of race discrimination and victimisation, holding that the claimant had established discrimination and victimisation against HARE in relation to an application for another post of Project Officer (Education and Liaison). The claimant was awarded £15,076. The Council was not a party to, and was not affected by, the Buckley decision.[22]On 23 June 2003 the ET notified to the parties its decision (the Haynes decision) following a hearing of 3 ½ weeks. The ET held HARE and the Council vicariously liable for victimisation of the claimant at the interviews for the two positions. The conduct of the interviews was found to have been motivated by the fact of previous discrimination proceedings against HARE. The Council was held to be vicariously liable for the acts of Ms White (see [40]), who attended the interviews of the claimant with the approval of her manager. The ET rejected the claimant’s contention that the Council was liable as agent for the acts of HARE. (The ET also found that Ms White must be considered to be an agent of HARE, because she was requested by them to attend and sit on the panel but that finding is not relevant to the liability of the Council. HARE was held vicariously liable for the acts of victimisation by its individual Executive Committee members.) A remedy hearing was directed.[23]The Council’s appeal against liability for victimisation was dismissed by the EAT at a preliminary hearing on 18 November 2003.[24]On 6 July 2004 the EAT allowed the claimant’s appeal and held that the ET had erred in identifying the respondent HARE as a company limited by guarantee and allowed her to bring the proceedings, in place of HARE, against named members of the Executive Committee of HARE. The issue of their liability was remitted to the ET.[25]On 23 December 2004 the ET made an order, on the claimant’s application, debarring the Council from defending the assessment of compensation on the ground that it had failed to comply with orders for the disclosure of documents made on 12 July 2004. No point has been taken that the debarring order has operated to prevent the Council from appealing and adducing arguments in the EAT and in this court against the correctness in law of the ET’s decision, which it was debarred from making at the hearing in the ET.[26]I should also mention at this point that earlier in 2004 the Council had taken counsel’s advice about its position vis-à-vis Ms White. On the basis of written advice given by Mr Daniel Tatton-Brown of counsel on 26 January 2004 the Council decided not to take disciplinary proceedings against Ms White. That episode was considered to be relevant to remedy against the Council, as the claimant successfully relied on it in support her claim against it for aggravated damages, though unsuccessfully in her pursuit of the Council for exemplary damages.[27]The matter progressed to remedy at hearings before a tribunal chaired by Employment Judge Lamb. On 15 April 2005 the ET substituted a judgment in respect of the Haynes decision that the complaints of victimisation under the 1975 Act and the 1976 Act were well-founded in respect of 11 named individual HARE Executive Committee members. They have not taken any part in the remedy hearings. Case management orders were also made.[28]The first Lamb decision on remedy for victimisation was promulgated on 30 October 2007. It was against Ms White alone. The hearing on 13 to 15 June 2007 was attended only by Ms White, her counsel and the claimant, who had produced a witness statement and a skeleton argument, in which she detailed items for loss of earnings and other financial losses, injury to feelings, injury to health, interest, aggravated damages and exemplary damages. As the Council had been debarred from defending, it was not represented at that hearing or the subsequent adjourned remedy hearing.[29]The ET’s Reasons recorded that, as a result of discussions between the parties (i.e. the claimant, Ms White and her counsel) it was decided that the issues “for immediate consideration” should be narrowed to what compensation should be awarded against Ms White personally and whether any order for costs should be awarded against her personally. The ET stated its understanding (see [13]) that, where the employer is a respondent and there is also an individual respondent liable for a discriminatory act or omission, the ET has a choice of either making a specific award against the individual respondent or a joint and several award against both, or all, if there are more than two. The ET cited an authority as an example of a joint and several award, and another authority as an instance of a specific award against an individual, separate and distinct from an award against an employer respondent. The ET continued:- “ 21. From this case law, it is clear that the sum to be awarded against the individual respondent should be part of the award for injury to feelings. It is separate from the award made against any other Respondent, including the employer of the individual Respondent. Usually, as in the Buckley case, there will be an overall award which is apportioned. In the circumstances of this case, given the limited basis upon which the Tribunal is considering the award against Ms White, we are not asked to reach such a conclusion, but it matters not, provided the award we make is comfortably within the limits of what may be awarded in total for injury to feelings. The practical consequence will be that when any award is made against the other Respondents, the fact that this award has been made against Ms White must be taken into account.”[30]The ET referred to the findings in the Haynes decision and made its assessment of the compensation. It recorded that, although Ms White accepted that she was bound by those findings, she asserted that she was in fact innocent of any wrongdoing. It referred to the existence of the Tatton-Brown report apparently exonerating her, but drew no conclusion from it adverse to her. The ET then assessed the damages for injury to feelings at £500 for race discrimination at the first interview and £750 for the second and added interest. It refused to make an order for costs against Ms White.[31]The award of compensation against the Council and the other individuals was not considered at that hearing. In the final paragraph of its decision the ET stated that:- “43. The case will now proceed to a further hearing to determine the award against the other Respondents.”[32]In making the award against Ms White the ET purported to apply the decision in Way v. Crouch (Way- see below) apportioning her personal liability to the claimant at the total of £1905.41 (£1250 plus interest) for injury to feelings caused by race discrimination. The ET did not give any consideration as to what would be the total award of compensation to the claimant from all the respondents to the Haynes decision, as amended. The reality was that the Council was the only corporate respondent and, more importantly, it was the only respondent that would be good for a substantial award of compensation.[33]A second remedy decision was promulgated by the ET with regard to the other parties on 17 September 2009. That followed the adjourned hearing on 22 November 2008 at which none of the respondents were represented, save for the attendance of a solicitor for the Council. The claimant attended. The ET held the Council and the other respondents to the victimisation claim jointly and severally liable to pay the claimant £421,415 for two acts of victimisation. The total sum included £262,026 for financial loss, £15,000 for injury to feelings, £25,000 for injury to health and £25,000 aggravated damages plus interest and costs. It did not include an award for exemplary damages, which the ET declined to make. The ET stated that its judgment was to incorporate the reasoning in the earlier judgment on remedy against Ms White. The amount of compensation awarded against her was then deducted from the total sum awarded against the Council and the other individual respondents.[34]The award was clearly made by the ET on the basis of joint and several liability to the claimant. The ET declined to apportion liability to the claimant as between the Council and the individual HARE respondents. As explained earlier, the Council objects to that award against it as legally erroneous and totally inconsistent with the basis of the earlier award against Ms White, for whose discriminatory conduct it was only vicariously liable. Other criticisms of the Lamb decision are considered in more detail below.[35]The claimant applied to the ET for, but was refused, a review of that decision.

The law

[36]Section 6(1) Sex Discrimination Act 1975 (the 1975 Act) and s. 4(1) of the Race Relations Act 1976 (the 1976 Act) cover, in similar terms, unlawful discrimination by a person in relation to employment, including refusing to offer employment. That legislation rather than the Equality Act 2010 applies to the events in this case, which preceded the coming into force of the 2010 Act.[37]Section 4 of the 1975 Act and s.2 the 1976 Act cover discrimination by way of victimisation, as where the claimant person was treated less favourably on the ground that she had brought discrimination proceedings against the Council and HARE.[38]Sections 41 and 42 the 1975 Act and ss. 32 and 33 of the 1976 Act deal with the liability of employers and principals for acts of discrimination by employees.[39]Section 41 of the 1975 Act (“Liability of employers and principals”) provides that:- “(1) Anything done by a person in the course of his employment shall be treated for the purposes of this Act … as done by his employer as well as by him, whether or not it was done with the employer’s knowledge or approval…”[40]Section 32(1) of the 1976 Act is in similar terms.[41]The employer is thus “treated” as having done, and therefore as jointly and severally liable to the claimant for, any act of victimisation done by the employee in the course of employment. The legislation does not in terms make any distinction between the “primary” liability of the employee and the “secondary” or vicarious liability of the employer, though it does make available to the employer a defence under s.41(3).[42]Section 42 (“Aiding unlawful acts”) should also be noted. It provides that:- “(1) A person who knowingly aids another person to do an act made unlawful by this Act shall be treated for the purposes of this Act himself as doing an act of the like description. (2) For the purposes of subsection (1) an employee or agent for whose act the employer or principal is liable under section 41 or would be so liable but for section 41(3)) shall be deemed to aid the doing of the act by the employer or principal.[43]Section 33 of the 1976 Act is in similar terms.[44]Thus, an employee, for whose act of victimisation the employer is liable under the legislation, is deemed to aid the doing of the act of victimisation by the employer: see Miles v. Gilbank [2006] EWCA Civ.543; [2006] ICR 1297.[45]The 1978 Act should be mentioned for completeness. Even though it is irrelevant to the point of law arising on this appeal, it has featured in the submissions.[46]The 1978 Act is concerned, as the title indicates, with the notion of one tortfeasor recovering contribution from another tortfeasor, or from other tortfeasors, liable in respect of the same damage, whether jointly with him or otherwise. The 1978 Act does not deal with the allocation, as between different tortfeasors, of different degrees of responsibility to the claimant for the damage suffered. As the EAT pointed out in this case (see [25]) it is not settled at present whether the ET has jurisdiction over contribution claims, or whether there would have to be separate contribution proceedings in the county court.[47]The decision in Way [2005] ICR 1362 was cited by the ET, as it has been by ETs in other cases, as recognising the existence of a discretion exercisable by the ET either(a) to apportion liability for the total sum awarded to a claimant as between the different respondents to a claim, or(b) to make a joint and several award under which each respondent would be liable to the claimant for the full amount of the award. Way was decided on the basis set out in s.2 of the 1978 Act referring to the right to contribution according to what was just and equitable having regard to the extent of each party’s responsibility for the damage in question. For reasons explained by the EAT and confirmed below, reliance on the 1978 Act to justify apportionment of liability to pay compensation to the claimant is misconceived.[48]Something is also said below about the nature and implications of(a) joint and several liability for victimisation and(b) vicarious liability for victimisation. An in-depth discussion of the law on those points is not required in order to dispose of this appeal.

The ET judgment

[49]As explained earlier the ET Reserved Judgment and Reasons sent to the parties on 17 September 2009 ordered that the Council and the nine HARE individuals were jointly and severally liable to pay to the claimant the sum of £421,415 by way of compensation and interest.[50]The ET referred to the earlier judgment against Ms White personally and stated that this was the remedy judgment resulting from the Haynes decision, as varied by the EAT, and should be taken to incorporate the reasoning in the judgment against Ms White.[51]Two passages in the Reasons are specially relevant to Mr Allen’s submissions.[52]The first relates to the matter of against whom the award should be made. The ET accepted the claimant’s submission that the whole of the award should be made payable by the Council. The factors relied on for the submission included criticisms of the Council’s conduct of the proceedings, its participation in them, its acceptance of liability for the acts of Ms White in the course of her employment, and the instructions to Mr Tatton-Brown to examine the ET proceeding and its outcome and then deciding “to disregard the Tribunal decision.” (see [83]) The ET added that HARE was in part funded by the Council and was in a position “of substantial responsibility and entitlement to influence the proceedings of the committee which discriminated against the Claimant, certainly by the time of the second act of discrimination, in respect of the caseworker post.” There was a culture on the committee, which must have been apparent to Ms White and which intentionally discriminated against the claimant by victimisation of her. Ms White was in a position to challenge the conduct of the committee’s proceedings and, if she was unsuccessful in that, to report back to the Council and seek to have the Council to use its “considerable influence” to bear on the proceedings of the committee. “Instead, she did nothing, She condoned the act of victimisation by her inaction.” (see[84])[53]The ET concluded that:
“85.…the responsibility for the outcome being a decision of the committee concerned, by its individual members, and by [the Council], it is entirely appropriate that the award should be made on a joint and several basis. It is the just and equitable course to be taken.”
[54]The second passage concerns the award of aggravated damages on which the ET reviewed the authorities for including such damages in a compensatory award where the discriminator has behaved in a “high-handed, malicious, insulting or oppressive manner.” The ETs award of £25,000 was made on the basis of its accepting what the claimant had put forward in her skeleton argument and evidence and on the basis of particular facts set out in [58] to [63] of the Reasons. They were the Council’s default in compliance with orders of the ET that led to the debarring order; the absence of any form of apology; the payment by the Council of the damages awarded against Ms White, which was defending her role; and the commissioning by the Council of the Tatton-Brown report, which document was described as “a cynical excuse for failing to act upon the conclusions of the Employment Tribunal.” (see [60] –[61]).

The EAT judgment

[55]The Council appealed to the EAT against the award being joint and several on the ground that the ET erred in law in failing to address the actions of each respondent to the claim and their respective contribution to the discrimination when holding that the Council was 100% responsible for the damage. The Council did not appeal against the amount of the award. The claimant cross- appealed on the ground that amount awarded was too low.[56]The EAT dismissed both the Council’s appeal and the claimant’s cross appeal on 27 May 2011. The judgment is reported at [2011] ICR 1374.[57]It upheld the award and accepted the claimant’s contention that the ET had no power to apportion, as between the Council and the individual respondents, their joint liability to the claimant for the statutory tort of unlawful discrimination. It held that, in accordance with general principles, where the loss was caused by a joint tort and it is not possible to attribute specific parts of indivisible damage to a specific tortfeasor, or tortfeasors, in exoneration, the “concurrent discriminators”, as the EAT described them, are jointly and severally liable for the whole damage: see Barker v. Corus (UK) plc [2006] UKHL 20 at [25] to [43] and [60].[58]The EAT rejected the Council’s contention that there should have been an apportionment of liability based on relative degrees of responsibility for the Council’s loss. There was no power to conduct an apportionment as between joint tortfeasors. Unlawful discrimination is a statutory tort under the 1975 Act and the 1976 Act. General principles of tort law applied. Where the same indivisible damage is done to a claimant by concurrent tortfeasors, each is liable to the claimant for the whole of that damage and no question of apportionment arises. Apportionment could only take place where there was a rational basis for distinguishing between the damage caused by one tortfeasor from another, so that the tortfeasors were liable to the claimant for part only of the damage, which was attributable to each of them.[59]The EAT held that the Council was unable to identify any features of the law of discrimination indicating that a departure from those general principles would be justified. In this case no apportionment of liability based on relative degrees of responsibility for the claimant’s loss was possible. The loss was indivisible. The legal position is accurately summarised with admirable clarity in the propositions in [16] of the EAT judgment.[60]The EAT also examined the correct position under the 1978 Act. Where the single tortfeasor finds himself liable to the claimant for the whole of the damage for which others might be liable, the 1978 Act allows that tortfeasor to claim a contribution from the concurrent tortfeasor in the proportion decided by the court. The 1978 Act deals only with contribution asbetween concurrent tortfeasors themselves: it is not relevant to the different issue of apportionment of the liability of concurrent tortfeasors to the claimant.[61]The EAT questioned reliance on the 1978 Act in Way as a legal basis for apportioning the liability of joint tortfeasors to the claimant. As the EAT said at [17]:- “…the relative responsibility of the tortfeasors may be relevant to contribution as between them but it is not relevant to their liability, in a case, like the present, to the claimant.”[62]The EAT distinguished this case of indivisible damage from others where there is a rational basis for distinguishing the damage caused by one tortfeasor from that caused by another tortfeasor, as, for instance, in the case of successive divisible discriminatory acts contributing to the damage suffered by the claimant.[63]The position was that the ordinary rules, which apply in cases where an employer and employee are jointly liable for the same act of discrimination, also apply where the concurrent discriminators (i.e the individual HARE respondents and the Council) are not employer and employee: see [24].[64]The EAT added to its judgment a note on the basis of joint liability under the discrimination statutes by reference to the case of Miles v. Gilbank (see above) and s.42 of the 1975 Act, which applies where the primary liability for discrimination is placed on the employer rather than on the individual employee, but the employee who does the act is treated as having aided his employer. Both employer and employee are treated as having done the discriminatory act complained of and are jointly liable for it.[65]The EAT agreed with the ET that there was no basis for making an award of exemplary damages and dismissed the claimant’s cross-appeal on that point. It did not deal with the award of aggravated damages, which was not appealed by the Council.

The Council’s submissions

[66]The essence of the Council’s case, which was skilfully developed by Mr Robin Allen QC at the hearing, was supplemented by a Note after the hearing. His overall submission was that the matter should be remitted to the ET to determine the level of the Council’s contribution to the award as being no greater than that of Ms White. Alternatively, the ET should re-assess the contribution to be made by the Council in the same way that it assessed Ms White’s contribution. In any event, the size of the award of aggravated damages should be re-considered.

Apportionment, joint liability and vicarious liability

[67]The principal legal point developed by Mr Allen QC was that, by virtue of s. 41(1) of the 1975 Act and s.32(1) of the 1976 Act, the Council is, as between it and its employee Ms White, jointly liable with her to the claimant. That is also the case on the application of the common law principles of vicarious liability: see Dubai Aluminium Co Ltd v. Salaam [2003] 2 AC 366 (Dubai Aluminium) at [155]. The joint liability had an important consequence for the amount of the claimant’s loss for which the Council could be held liable in this case. The vicarious liability of the employer is co-extensive with that of the employee. The Council is not independently liable to the claimant in respect of its own conduct: it is answerable to the claimant for the tortious conduct of Ms White, but its liability could not be any greater than the amount of loss caused to the claimant by the statutory tort of victimisation committed by Ms White as employee.[68]The Council was deemed to have done what Ms White had done, no more and no less. There was one statutory tort, that of discrimination by victimisation, for which both were jointly liable. It was committed by Ms White, who was implicated in the discriminatory acts of the other individuals involved, and the Council is only vicariously liable to the claimant for that tortious act.[69]On the facts of this case Mr Allen’s crunch point was that damages were assessed once for that joint tort and the assessment of that liability to the claimant could not differ as between the joint tortfeasors. Only one sum may be awarded in a single proceeding resulting in one judgment against two or more tortfeasors responsible for a joint tort: see Cassell & Co Ltd v. Broome & Anor [1972] AC 1027 at 1063E, 1089G-H, 1096F-G, 1105D, 1118H, 1121G, 1122B, 1131H and 1132E (a case on the award of exemplary damages for defamation).[70]The crucial circumstances here were that the claimant secured an apportioned assessment of compensation against Ms White and that she was stuck with that when it came to her claim for compensation against the Council. The claimant could not obtain an award of a greater sum against the Council as the other joint tortfeasor. The ET fell into legal error by its inconsistent treatment of the discriminators as to joint and several liability and apportionment. The Council, like the claimant and the EAT, considers that Way was wrongly decided and that there is no power to apportion, as between joint tortfeasors, the joint and several liability to the claimant under the 1975 Act, the 1976 Act or the 1978 Act.[71]Even if the case of Way relied on by the ET were correct, Mr Allen submitted that it was not open to the claimant both to deploy it when dealing with the award to Ms White and then not to rely on it in the case of the Council and other individual respondents. The decision in the case of Way was applied in the remedy decision against Ms White, but not in the decision against the Council. The claimant and the ET, which accepted her submissions, switched the approach to remedy half way through the process. The claimant was not entitled in those circumstances to contend that Way was wrongly decided and that the ET did not have power to apportion liability at the adjourned hearing, as it had done in the case of Ms White at the first hearing.[72]The liability of Ms White was treated as several, but the liability of the others was treated as joint and several. That was inconsistent. The vicarious liability of the Council was co-extensive with that of Ms White, so that the loss caused to the claimant by the Council, which was “innocent”, could not be greater than the loss caused by Ms White, who actually committed the act of victimisation.[73]In brief, and on a broad view of the matter, the treatment of the Council was disproportionate compared with the treatment of Ms White. It was inconsistent with it and it was unfair. The Council is left with a huge liability for two acts of discrimination for which it is only secondarily liable. It has an uncertain prospect of recovering contribution for any of it from the primary individual tortfeasors.

Aggravated damages

[74]The award of aggravated damages against the Council was also made in error of law according to Mr Allen QC. In particular, the ET was wrong in its criticisms of the Tatton-Brown report to which most attention was given by the ET in making the award.[75]Following the Haynes decision the Council had to face the question whether or not to bring disciplinary proceedings against Ms White. It decided to seek assistance from Mr Tatton-Brown, a barrister in independent practice, concerning a possible case of misconduct against Ms White. That was a reasonable and sensible decision concerning events, which had happened over three years before and as to which Ms White protested her innocence[76]The Council should not have been held responsible for the advice given by independent counsel about giving consideration to further training rather than formal disciplinary charges. It had taken an appropriate step in seeking such advice which was given in good faith. It was reasonable advice which it was reasonable for the Council to follow.[77]Mr Allen QC submitted that the ET had erred in accepting confused and contradictory submissions on aggravated damages in the claimant’s skeleton argument for the second remedy hearing in November 2008, and, in particular, in relation to the Tatton-Brown report. The claimant relied on that aspect in relation to aggravated damages, as well as exemplary damages, which are not now pursued. She had submitted that the existence of the Tatton-Brown “report” was evidence of the Council’s “high handed, malicious, insulting or oppressive conduct” and accused Mr Tatton-Brown of going behind the findings of fact. It was not even clear from the ET judgment what aspects of the Tatton-Brown episode were considered objectionable: the commissioning of the advice, its content, or the decision to follow its recommendations. He was criticised for a selective approach to the evidence, for disagreeing with the findings of the ET and for exonerating Ms White. It was described as a cynical excuse by the Council for failing to act on the conclusions of the ET.

Discussion and conclusions

[78]Although this case has gone on for years and although it has been argued in depth in the ET, and on appeal to the EAT and to this court, the point of law which this court has to consider on remedy is quite short: was it wrong in law for the ET to hold the Council liable to the claimant for the full amount of loss assessed in the second remedy decision notified on 17 September 2009?[79]I will begin with some preliminary comments.[80]First, on the face of it, £421,415 seems to be a great deal of money to compensate the claimant for acts of discrimination in two unsuccessful job interviews, but that impression is an irrelevant observation in this case: no appeal has been brought by the Council against the quantum of compensation, save for the criticism of the £25,000 award for aggravated damages.[81]Secondly, as Mr Allen QC has rightly pointed out, legal errors were made in the remedy process undertaken by the ET. I do not think that it is fair in the circumstances to criticise the ET for the errors, which do not, in any case, affect the outcome of the appeal. The ET obviously did not have the benefit, which this court has had, of the excellent analysis in the judgment of the EAT and of the assistance of Mr Allen QC. By securing the exclusion of the Council from the remedy hearing, the claimant obtained the advantage of no opponent, but the ET lost the advantage of the professional legal assistance that it might otherwise have had from the Council’s legal team.[82]Nor is the ET to be blamed for citing and relying on the guidance on apportionment in the case of Way, which I understand has been followed by ETs in other cases. In the light of the lucid analysis of the law in the EAT judgment and of Mr Allen’s proper acceptance of the EAT’s ruling on that point, the ET was wrong in its view that it had power to apportion the liability of the respondents to the claimant. In Way the EAT had derived the power to apportion from s. 2 of the 1978 Act, but that was mistaken, because the 1978 is not about apportioning, as between defendants/ respondents, liability to the claimant. The 1978 Act is about proceedings between joint tortfeasors to recover contribution to the amount which a joint tortfeasor has been found liable to pay to the claimant: the claimant is not involved in or affected by inter-tortfeasor claims for contribution. I would overrule Way on that point.[83]However, the mistaken, but understandable, reliance of the Lamb Tribunal on Way has no impact on the Council’s appeal from the award against it. At the adjourned remedy hearing the ET did not follow the argument for apportionment advanced by Counsel for Ms White and which was opposed by the claimant. The ET’s decision not to apportion was legally correct, though for the reason that it had no power in law to make an apportionment rather than because there was no case for apportionment on the facts.[84]The ET did err in law in making the award against Ms White. It purported to exercise a power to apportion her liability to the claimant, which it did not have. However, that error of law is irrelevant to this appeal, because no appeal has been brought against the award against Ms White: this appeal is from the award against the Council. However, and with considerable legal ingenuity, Mr Allen QC sought to incorporate that erroneous decision against Ms White and from which no appeal has been brought, into the Council’s appeal from the award against it. That unappealed decision is at the heart of his argument on the inconsistency of the ET in the treatment of the Council’s vicarious liability to the claimant and of its employee’s personal, but joint, liability to the claimant.[85]Mr Allen QC and the claimant are rightly at one on the joint liability of the Council and Ms White to the claimant for her victimisation. That is clear from the statutory provisions. Even if that position were not made clear in the 1975 and in the 1976 Act, it would be the position on the application of common law principles of vicarious liability and the liability of joint tortfeasors.[86]The overall inconsistency argument deployed by Mr Allen QC for limiting the financial exposure of the Council to the lesser amount awarded against its employee is based on a combination of three strands:(a) the legally erroneous, but unappealed, apportionment of the liability of Ms White to the claimant;(b) the vicarious character of the Council’s liability for Ms White’s tort of victimisation; and(c) the joint nature of the liability of the Council and Ms White to the claimant.[87]In my view, Mr Allen’s submission which, viewed in the abstract, might have some basis in legal theory, fails on the facts of this case. It is plain that there was no intention on the part of the claimant, Ms White or the ET at the first remedy hearing to make any determination of any remedy issue as between, on the one hand, the claimant and, on the other hand, the remaining tortfeasors, including the Council, who did not take part in that hearing. As between them and the claimant the assessment of damages remained at large. The only issue which the ET was asked to decide at the first remedy hearing was the award against Ms White personally and even that was to be limited to injury to feelings for race discrimination. The apportionment, which was made in error of law in any event, was not intended to determine any other issues of the liability of other parties to the claimant.[88]The claimant certainly did not intend to forgo any claims for damages that she had against the other joint tortfeasors. In my judgment, the ET’s error in making an apportionment as regards the liability of Ms White to the claimant did not prevent her from pursuing her claims against other joint tortfeasors. Those claims were simply adjourned by the ET to be determined at a later hearing. If Mr Allen is right the claims against the Council for vicarious liability were determined at the hearing that dealt only with the claim against Ms White. I do not believe that that accords with the intentions of all concerned including the ET. Nor do I regard it as correct in law.[89]In this case the damage suffered by the claimant in consequence of victimisation in the treatment of her two job applications was indivisible, which means that, as against the claimant, no single tortfeasor is liable only for consequences peculiar to his acts. Each is jointly liable to the claimant for the full amount of the damage suffered by her. The indivisible character of the damage for which the Council and other respondents were jointly liable was not altered by the ET’s error of law in purporting to apportion the liability of Ms White to the claimant.

Further post-hearing submissions

[90]In the course of writing this judgment I formed the view that it was advisable to draw the attention of Mr Allen QC and the respondent to the judgment of the House of Lords in Jameson v. C.E.G.B. [2000] AC 455 (Jameson) and I invited any submissions that the parties might wish to make by 4pm 13 July 2012. Both parties made written submissions.[91]As Mr Allen and the respondent pointed out, Jameson was about the effect of a settlement. The case related to the rule that, if a claimant has settled a money claim with one concurrent tortfeasor on a “full-value” basis, he cannot claim a further amount in an action against another concurrent tortfeasor. The settlement with the first tortfeasor fixed the value of the loss and, once it had been paid by the first tortfeasor to the claimant, an essential element of the cause of action against the second tortfeasor (un-remedied damage) went.[92]At 474G-H Lord Hope expressed a possible reservation when he said:- “There may be cases where the terms of the settlement, or the extent of the claim made against the tortfeasor with whom the plaintiff has entered into the settlement, will show that the parties have not treated the settlement as satisfaction for the full amount of the claim of damages. In the same way a judge, in awarding damages to the plaintiff in his action against one concurrent tortfeasor, may make it clear that he has restricted his award to a part only of the full value of the claim.”[93]On that point Mr Allen submitted that the fact that a party may part settle a claim does not mean that she can seek to advance to the court or tribunal on part of her claim for damages for loss against one of two parties, who are responsible jointly for a single cause of action. Jameson was not authority for the proposition that a party may forbear in advancing the whole of her claim for damages for a single cause of action against one of two joint tortfeasors and then advance the residual amount against the other.[94]In any event, Jameson was not directly in point, because in that case there were two concurrent tortfeasors liable for different, but overlapping, causes of action based on separate acts giving rise to the same damage. The point at issue concerned the relevance of a settlement between the claimant and one of the two concurrent tortfeasors to a subsequent action for damages against the other concurrent tortfeasor. Jameson was not concerned with the liability of two people, who had committed exactly the same joint tort.[95]In this case, Mr Allen QC submitted, the point is whether the claimant, who has obtained an award of a liquidated sum against one of two joint tortfeasors (Ms White), can obtain a judgment against the other joint tortfeasors in the same proceedings for more than the sum in damages awarded against Ms White. There is in this case a coincidence of liability and vicarious liability, which is substitutional and co-extensive, not personal. Only one sum may be awarded in a single proceeding for a joint tort. The fixing of the loss caused by Ms White in the first remedies hearing fixed the amount for which the Council could be made liable. There was no power in the ET to make the Council pay more than it assessed as being the loss caused by Ms White.[96]In her 10 page submission the respondent also distinguished Jameson as a case on the full and final settlement of a claim against a concurrent tortfeasor. In the present case it was made clear that the sum being awarded against Ms White was only a contribution to the award for injury to feelings: that award was not for the full of final amount of the damages being claimed by the claimant for the victimisation suffered by her. It was made clear by the ET that there was to be a further hearing to assess the amount of her loss as against the Council and other tortfeasors. The process of assessing and awarding damages had not been completed, save as against Ms White personally. She was not attempting to claim against the Council more than the amount of her loss. She had made it clear that she was preserving her right to full damages to be determined at an adjourned hearing[97]I am grateful to Mr Allen QC and the respondent for the trouble they have taken to respond to the court’s concerns about the possible relevance of Jameson. I am satisfied that it does not affect the view, which I had already formed, that this case turns not so much on the application of general propositions of the law of joint and vicarious liability, as on the particular procedure adopted by the ET in attempting to deal, in piece meal fashion, with the assessment and award of damages at different stages of the remedy process in relation to different defendants. The intentions of all concerned were clear, even if the law on contribution proceedings and the legal implications of vicarious liability and joint torts were not correctly appreciated.

Aggravated damages

[98]This court will only interfere with the ET’s assessment of compensation where it was assessed in an amount which no reasonable tribunal could have assessed it. The ET awarded aggravated damages to compensate the claimant for the manner in which the tort of victimisation was committed.[99]In justifying its award the ET relied on the cumulative effect of a number of factors. Mr Allen QC submitted that the Tatton-Brown report should have been excluded from the assessment, as it was not a relevant consideration. I am inclined to agree with him on that point. It is unclear how the commissioning of an independent report or advice on whether the Council should deal with the employee, who committed the act of victimisation, by way of disciplinary action was high handed, malicious, insulting or oppressive.[100]However, I do not think that factor is enough to get him home on his attack on the award of aggravated damages. It is only one of a number of factors and I am not persuaded that, even if the Tatton-Brown episode had been left out of account, the ET could not have properly made an award in the amount that it did.

Result

[101]I would dismiss the appeal. There was no error of law in the ET remedies decision awarding compensation, including aggravated damages, against the Council in excess of the amount of compensation that it had awarded to the claimant as against Ms White as part of an erroneous apportionment exercise.[102]I agree.[103]I also agree.

Cited in 33 later judgments

and 24 more of the most senior