SUMMARY
SEX DISCRIMINATION
Injury to feelings
Other losses
The Appellant was awarded compensation for unfair dismissal and
sex discrimination. The Employment Tribunal apportioned the award for injury
to feelings between the Respondents – the employers and two managers. They
ordered the employer to pay compensation for loss of earnings, on the basis of
unlawful deductions, but failed to make an order for such compensation under
the sex discrimination claim.
Held on appeal:
(1) Following
Sivanandan (UKEAT/0075/10) compensation for sex discrimination
ought to have been joint and several between the responsible Respondents.
(2) But (1)
did not apply to the 25 per cent uplift for which the individual Respondents
were not responsible.
(3) The ET
ought to have awarded compensation for loss of earnings, on a joint and several
basis, for sex discrimination, although the same loss was awarded as unlawful
deductions against the employers only.
HIS HONOUR JEFFREY BURKE
QC
Introduction
1.
The Claimant before the Employment Tribunal, Ms Catanzano, appeals
against three aspects of the Judgment of the Tribunal, presided over by
Employment Judge Glennie, sent to the parties on
3 June 2011 with written Reasons sent on 8 July. Because the
appeal relates only to part of the remedy section of that Judgment, we do not
need to refer to the facts other than in very summary form. The Claimant was
employed by the First Respondent, Studio London Ltd. The Second Respondent was
Mrs McMillan, a senior manager of the first Respondent; and the Third
Respondent, Mr Ward, was their general manager. The business of the
company was the provision of studio photography at premises in Great Portland Street in London. The First Respondent was at the time of the hearing before
the Tribunal, and is now, in administration. The administrators consented to
the claim proceeding before the Tribunal and indicated an intention not to
defend; and they did not defend; they were not present before the Tribunal;
they have not been present before us; and there is no question of this appeal
adding to the First Respondent’s liabilities.
2.
So far as the Employment Appeal Tribunal is concerned, the First Respondent
has been debarred, because it put in no answer; the Second and Third
Respondents were both represented before the Employment Tribunal by the same
solicitor. The Third Respondent has, however, also not put in a response to
the appeal and therefore has also been debarred. The Second Respondent,
Mrs McMillan, did put in an answer, but has since written a letter to the
Employment Appeal Tribunal saying that she cannot afford any more legal costs,
does not understand the complexities of the appeal and is suffering from
stress. At the end of her letter she says this:
“I would like to believe that I too am entitled to some
protection from the Tribunal, as Ms Catanzano and Cubism [Ms Catanzano’s solicitors] seem
determined to pursue me to a degree that could be seen as vexatious and
intended to cause personal suffering.”
3.
She has not been represented. We will of course attempt to ensure that
she is at no disadvantage by not being represented. The fact that a Respondent
does not appear to resist an appeal does not mean that the appeal is allowed by
default. An appeal is only allowed if the Employment Appeal Tribunal is
persuaded that there has been an error of law; and any appellate court is
rigorous to ensure that appeals do not succeed on anything other than the
application of an in‑depth examination of the arguments put forward on
behalf of the Appellant.
Background
4.
In May 2008 the Claimant became pregnant; and she asked for a
transfer to an employed position with the First Respondent, having previously
been on a freelance basis. That was agreed; and she started to work in that
role, on the Tribunal’s findings of fact, in September 2008. She then
took maternity leave; when she left, there was no agreement as to when she
would come back. Her child was born in January 2009; but soon afterwards
the child was diagnosed as having a serious disorder, which no doubt affected
the Claimant’s ability to return to work. At the end of 2009 the Claimant
asked Mrs McMillan when it would be convenient to return to work; but
Mrs McMillan did not want her to come back, saying that there was not
enough work to do. A similar request a month later led to the same result.
The Claimant spoke to Mr Ward about the situation; but he referred her back to
Mrs McMillan. She eventually returned to work on a part‑time basis
for a trial period on 20 March.
5.
Towards the end of April she was summarily dismissed, on the basis of
allegations that were never put to her and were not properly investigated, if
at all. She put in a grievance, which was dealt with by the First Respondent
in a manner that fell woefully short of satisfactory. It was not dealt with by
either the Second or Third Respondent but by others whose identities and acts
are detailed in paragraphs 34‑39 of the Tribunal’s Judgment.
The Tribunal’s conclusions
6.
The Tribunal found:
(1) The
prevention of the Claimant from returning to work constituted sex
discrimination on the part of the First Respondent as the Claimant’s employer
and on the part of the Second and Third Respondents as having been centrally
involved in that discrimination (see paragraphs 40‑43 and 45).
(2) The
dismissal was unfair. There had been no proper investigation, no disciplinary
proceedings and no right to appeal. The Tribunal found that the dismissal
occurred because the Respondents believed that the Claimant had been guilty of
misconduct and was not an act of sex discrimination (paragraphs 44‑48).
(3) The
Claimant should be awarded £3,000 for injury to feelings. The First Respondent
was to be liable for the whole of that sum plus a 25 per cent
increase by reason of their failure to follow the ACAS Code of Practice; but,
following the decision of the Employment Appeal Tribunal in Way and Anor v Crouch
[2005] ICR 1362, a Judgment given on 3 June 2005, the sum of £3,000
awarded for injury to feelings should be apportioned between the Respondents on
a just and equitable basis, namely that the First Respondent would be liable
for the £3,000 in its entirety and the Second and Third Respondents should each
be liable for 20 per cent of that £3,000, i.e. £600 each.
(4) The uplift
on that £3,000 should, however, not be the subject of an award apportioned
between the three Respondents, because the First Respondent was to blame for
the uplift and the Second and Third Respondents had not directly influenced the
way in which the grievance process had been undertaken.
(5) The
Claimant would be awarded the sum of £38,626.95 as compensation for unfair
dismissal, including a 25 per cent uplift and a basic award for £380;
that award was made, of course, against the First Respondent only.
(6) The
Claimant was awarded £17,907.86 for unlawful deductions from wages and for loss
of holiday pay, an award which again, of course, was made only against the First
Respondent, the Second and Third Respondents being Respondents to the
discrimination claim but not to any of the other claims that the Claimant put
forward.
The grounds of appeal
7.
Mr Kazantzis, on behalf of the Claimant, has put forward three
grounds of appeal against those orders. They are, in short, these:
(1) The
Tribunal erred in law in apportioning the award for injury to feelings as they
did; they should have made each Respondent jointly and severally liable for
that award as a whole.
(2) The
Tribunal ought simply to have added the 25 per cent uplift to that
£3,000, i.e. a further £750, and made each Respondent jointly and severally
liable for the whole of the award including the uplift.
(3) Under the
head of the award for unlawful deductions from wages the Tribunal awarded the
Claimant’s unpaid salary between 1 January and 19 March 2010, the
period for which she was kept out of work and paid no salary, as a result of
the discrimination to which we have earlier referred. The sum awarded in
respect of that period was in gross terms £7,808.35, to which the Tribunal then
applied the 25 per cent uplift to reach a gross total of £9,256.35.
At paragraph 75 the Tribunal said that, having awarded that sum under the
complaint of unlawful deductions from wages, no further award in respect of
loss of earnings was appropriate. That, it is submitted, was an error, because
the loss of earnings awarded under the unlawful deduction head arose directly,
on the Tribunal’s findings, from the discrimination by all three Respondents
and therefore should also have been awarded under the discrimination head but
against all three Respondents jointly and severally.
8.
We will deal with each of those heads of appeal in the order that we
have just set out. It is clear that they all arise because of the insolvency
of the First Respondent. We are told, although it does not affect our
decision, but it is part of the important background, that the First
Respondent, albeit, as we understand it, still in administration and not in
liquidation, has no funds and had no insurance in respect of the Claimant’s
claims.
Apportionment of award for injury to feelings
9.
The Tribunal heard these claims in April 2011. Their Judgment was
signed by the Employment Judge on 27 May and sent to the parties on
3 June. On 27 May the Employment Appeal Tribunal, presided over by
the then President, Underhill J, handed down its Judgment in the case of London Borough of Hackney v Sivanandan
UKEAT/0075/10. The Employment Tribunal could not have been aware of that
Judgment. In Sivanandan the Claimant was found to have been
victimised by the members of an interview panel of a body called Hackney Action
for Racial Equality because she had previously brought, and succeeded in,
proceedings against that body. She had brought the claim which led to the
hearing before the EAT in 2011 against the London Borough of Hackney, Hackney
Action for Racial Equality and against a number of the members of the panel by
whom she had been interviewed.
10.
The liability hearings had a prolonged and convoluted history. By the
time remedies came to be considered, the only respondents who had not been
debarred or disbanded were the borough and a Mrs White, who was an
employee of the borough but who worked for the body to which we have referred.
Hackney appealed against the Tribunal’s order that they and Mrs White were
jointly and severally liable to pay to the claimant the substantial
compensation that had been awarded by the Tribunal for victimisation. The
Tribunal had made an apportionment on the basis that they had a discretion to
do so following the Employment Appeal Tribunal’s decision, the Employment
Appeal Tribunal being on that occasion presided over by HHJ Birtles, in Way.
11.
Thus it came about that the EAT in Sivanandan had to
consider whether such a discretion existed; and it was held that it did not,
where the loss suffered by the Claimant was an indivisible loss, i.e. one which
had been caused at the same time by the individual respondents for whose acts
the employer was liable. It was held that, if the loss being the subject of
compensation was historically divisible, for example in a case in which
different employers had contributed at different stages to an industrial
disease, the court or Tribunal could hold that each employer was liable for the
particular damage he had caused, and, in the employment context, different respondents
who had contributed to the total loss by different acts at different times,
could within the discretion of the Tribunal be made liable for the individual
parts that they had individually caused.
12.
At paragraphs 16 and 17 of their Judgment in Sivanandan
the Employment Appeal Tribunal said this:
“16. What
those rules are is reasonably well‑established, though there are some
particular problem areas and confusion can be caused by the different senses in
which the term ‘apportionment’ is sometimes used. The most illuminating recent
expositions of the law are in the judgment of Laws LJ in Rahman v Arearose Ltd.
[2001] QB 351, at paras. 17-22 (pp. 361-4), and the opinion of Lord Hoffmann in
Barker v Corus UK Ltd. [2006] 2 AC 572, esp. at
paras. 25-43 (pp. 587-592). For present purposes the following summary will
suffice:
(1) Where the same,
‘indivisible’, damage is done to a claimant by concurrent tortfeasors – i.e.
either tortfeasors who are liable for the same act (joint tortfeasors)
or tortfeasors who separately contribute to the same damage – each is
liable for the whole of that damage. As between any particular tortfeasor and
the Claimant no question of apportionment arises (leaving aside the question of
contributory negligence). The classic statement is that of Devlin LJ in Dingle v Associated Newspapers Ltd.
[1961] 2 QB 162, at p. 189.
(2) It is obviously
potentially unjust that a single tortfeasor may find himself responsible to the
claimant for the entirety of damage for which others may also be liable or to
which they may have contributed. That issue is addressed (in England and Wales) by the provisions of the 1978 Act. Section 1 of the Act gives any person
liable in respect of any damage the right to claim ‘contribution’ from
concurrent tortfeasors to the extent of such proportion of the overall
liability as the court decides, applying the criterion in section 2 of the Act:
as mentioned above, this is what is found ‘to be just and equitable having
regard to the extent of that person’s responsibility for the damage in
question’. It is important to emphasise that while this kind of
‘apportionment’, as it is often described (though that term is not used in the
statute) determines the liability of concurrent tortfeasors as between
themselves, it has no impact on the liability of any of them to the
claimant. The claimant can recover in full against whichever
tortfeasor he chooses, and that tortfeasor has the burden of recovery of any
contribution from the others, and the risk that they may not be solvent.
(3) The previous two
points are concerned with damage which is indivisible. If there is a
rational basis for distinguishing the damage caused by tortfeasor A from that
caused by tortfeasor B the position is different. (This is the case, for
example, where employers contribute at successive stages to the development of
a progressive industrial disease, such as deafness.) In such a case the
court will hold A and B liable to the claimant for that part only of the damage
which is attributable to each of them. This process is also referred to
as ‘apportionment’, but it is a quite different exercise from that carried out
under the 1978 Act. Where it applies, the claimant will have to proceed
against each tortfeasor for the part of his loss caused by him.
(4) The decision of the
House of Lords in Barker has recognised an exception to the foregoing
principles in the very particular circumstances there considered (though it in
turn has been partially reversed by subsequent legislation); but that has no
relevance for our purposes.
17. We have said that those rules should apply to compensation
for the statutory tort of discrimination ‘other things being equal’. Mr.
Clayton was not able to suggest any special features of the law of
discrimination which required a different approach, nor can we see any.
It is our view, therefore, that the Tribunal had no power to conduct the
exercise which the Council claims that it should have conducted. It is
not, for the avoidance of doubt, being said that it should have apportioned
liability on the basis that the Claimant’s loss was divisible, i.e. that
different acts of discrimination as between the Council Respondents and the HARE
Respondents caused different damage: Ms. White, through whom the Council was
liable, was party to all the acts complained of. Rather, what Mr. Clayton
on behalf of the Council seeks is an apportionment of liability on the basis of
the Council Respondents’ and the HARE Respondents’ relative degrees of
responsibility for the Claimant’s loss. That submission is misconceived:
as explained above, 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.”
13.
The Tribunal then addressed some earlier cases, including Way,
in which a different view had been taken or might be thought to have been
taken. In Way, for example, at paragraph 23(1) the EAT had
said this:
“The practice of Employment Tribunals since 1975 confirms that
in almost every case it would be unnecessary to make a joint and several award
of compensation in a discrimination case. The present practice of apportioning
liability (where appropriate) between individual employees and employers works
well in practice and does justice to the individual case.”
14.
In Sivanandan the EAT disagreed with that approach and,
however desirable it was, set out their view that it was unsoundly based in
law. At paragraphs 21 and 22 the EAT said:
“21. We
acknowledge that, as Judge Birtles says at (1), the course of apportioning
liability between employee and employer respondents has been not uncommon over
many years, though we do not know quite how widespread the practice has
been. As to whether it ‘does practical justice’, we are not so
sure. We can see the broad attraction of ensuring that the individual
discriminator has to share some of the cost of compensating the victim for acts
of which he or she was the primary perpetrator (though even if the award is
apportioned that will only happen if the employer does not choose to indemnify
the employee). But that result can equally be achieved by awarding
contribution as between the two (see para. 16 (2) above), and we do not see why
it is just that the claimant should undertake the risk of the respondent
employee being unable to meet that part of the liability which is apportioned
to him or her. It will also of course be largely arbitrary whether the
individual discriminator (or all of them) has been joined in the first
place.
22. But,
whatever view may be taken about the desirability of the practice, we are bound
to say that we do not understand the legal basis on which it has been
adopted. We note that similar doubts were expressed by Langstaff J in
this Tribunal in Munchkins Restaurant Ltd v Karmazyn (UKEAT /0359/09/LA),
at paras. 32-33. We are not, with respect, assisted by either of the
authorities referred to. If employer and employee are jointly liable,
there is on ordinary principles no basis for apportionment. Although [Way]
appears to rely on the 1978 Act, that is, with respect, a red herring: as we
have sought to explain, the Act has no bearing on the liability of concurrent
tortfeasors to the claimant. (And, even if it did, it would
seem to lend little support to what we understand to be the usual practice of
apportioning most of the liability to the employer, since it will typically be
the employee who is the more culpable: as Judge Birtles recognises at (4),
ability to pay is not a relevant consideration under section 2.)
Smith J. in Armitage makes no reference to the 1978 Act; but nor
does she identify any other basis for the discretion to which she referred.”
15.
We should finally refer to paragraph 25, which is in these terms:
“25. In
view of the misunderstanding which seems to have prevailed in this area of the
law, we would, at the risk of repetition, emphasise that nothing in this
judgment precludes “apportionment” in either or both of two other senses.
First, there may be cases where the injury caused by different acts of
discrimination is ‘divisible’ – see para. 16 (3) above – and the Tribunal can,
and indeed should, apportion to each discriminator responsibility for only that
part of the damage caused by him. Secondly, there may be claims of
contribution as between the respondents – though, we
repeat, that is not the present case. It was confirmed by the Court of
Appeal in Ross v Ryanair Ltd. [2005] 1 WLR 2447, at para.
28 (p. 2458), that the 1978 Act applies to liabilities under the discrimination
legislation. However, there must be a question whether the
statutes/regulations in question confer jurisdiction to determine such
contribution claims on the employment tribunal, as opposed to by way of
separate proceedings in the ordinary courts (this issue did not arise in Ross
because the primary claim was brought in the County Court). That question
will have to be considered if and when it arises.”
16.
In the subsequent decision of the Employment Appeal Tribunal, presided
over on this occasion by Silber J, in Bungay and Anor v Saini and Ors
UKEAT/0331/10, Sivanandan was followed and Way was
disapproved in these terms:
“37. The
Court of Appeal was apparently not referred to [the] earlier case of [Way]
in which this Appeal Tribunal held that an Employment Tribunal had not erred in
making an award for sex discrimination on a joint and several basis against the
respondent company and its managing director, but that the Tribunal had erred
in making the whole of the compensation payable jointly and severally to both
respondents. Judge Birtles giving the judgment of this Appeal Tribunal
explained that:
‘23. […] (3) if an Employment Tribunal considers it
necessary to make a joint and several award of compensation it must have regard
to the language of section 2(1) of the Civil Liability (Contribution) Act 1978
[…]. In other words, it is not appropriate in almost any case for an
Employment Tribunal to make a joint and several award which is 100% against
each respondent. That is to do violence to the language of s2(1) of the
1978 Act which specifically directs the attention of the Employment Tribunal
“to the extent of that person’s responsibility for the damage in question.’
38. This
statement is inconsistent with the approach of the Court of Appeal in Gilbank [v Miles
[2006] IRLR 538] and the reasoning in the remedy judgment in this case that the
Appellants had been ‘the prime movers in the campaign of discriminatory
behaviour’, which significantly is very similar to what was said by the Court
of Appeal in Gilbank (‘consciously fostered and encouraged a
discriminatory culture’) as we have explained in paragraph 36 above.
39. In
our view, the correct approach to the measure of compensation for loss caused
by unlawful discrimination should be to follow the ordinary principles to the
law of tort which was the approach adopted in the Gilbank case and in
two further cases decided after the remedies judgment in the present case.
First, in [Karmazyn], Langstaff J giving the
judgment of this Appeal Tribunal explained that:
‘33. We confess to having very considerable
doubts about the part of the decision in [Way] which suggests that
as between a Claimant and a Respondent or Respondents the percentage of
liability of the Respondents is relevant in the way in which that Tribunal
determined. We consider the appropriate principle is that where there is an
award of joint and several liability the Respondents or any one of them is
liable for the full extent of the damages to the Claimant. As between the
Respondents a Respondent may have a right to seek contribution from a
co-Respondent, depending upon the relative contribution and responsibility of
each of the Respondents to the wrong which has been done, but we do not see how
that affects the position of the Claimant, who is entitled, if the award is
joint and several, to receive the full extent of his award from any such of the
Respondents as he chooses.’”
17.
At paragraph 42 the EAT decided that they should follow Sivanandan
and other cases which appeared to doubt the principle set out in Way
rather than to follow Way, about which they said that the time
might well have come when Way should no longer be relied upon or
even cited as accurately representing the law.
18.
In the absence of anyone representing the Second and Third Respondents,
we have considered carefully whether an argument that the Way
approach should be regarded as correct and the conclusions of Underhill J
in Sivanandan and Silber J in Bungay should be
regarded as erroneous would have succeeded if made. Our conclusion is that it
would not and that the principle as set out in Sivanandan and Bungay
must now be regarded as the correct principle. Where the loss which is being
compensated for in a discrimination case is attributable to what, in a claim of
tort, would be described as concurrent tortfeasors, and in employment law as concurrent
wrongdoers, it is indivisible. There is no power in the Tribunal to apportion
that loss between the Respondents in the sense of ordering that the
Respondents, between themselves and the Claimant, should bear that loss other
than each being jointly and severally liable for the whole. There may be
claims between Respondents; who are jointly and severally liable to the
Claimant for the whole of an award, for contribution as between each other; but
there is no power in the Tribunal to make an assessment of such contributions
as between the Claimant and the Respondents, who must be held jointly and
severally liable for indivisible damage. This is not a case in which the acts
of discrimination on the part of the Second and Third Respondents for which the
First Respondent are liable were separate in time or otherwise from those of
the employer, the First Respondent. The First Respondent is liable on the
basis of their vicarious responsibility for the actions of the Second and Third
Respondents.
19.
We can, in these circumstances, see no escape from concluding that, in
the light of the decisions of the Employment Appeal Tribunal in Sivanandan
and in Bungay, which explain in clear and cogent terms why the
earlier cases had perhaps fallen into error, the Employment Tribunal in this
case were wrong not to have ordered that the liability of all three Respondents
for the injury to feelings award was a joint and several liability. The effect
of that conclusion is that each of the Respondents is liable to the Claimant
for the whole of the £3,000. Each Respondent has a right under the 1978 Act,
referred to in both Sivanandan and Bungay, to seek
a contribution from the others; but, as between them and the Claimant, each
should have been held by the Tribunal and is held by us to be jointly and
severally liable for that £3,000.
The uplift
20.
The power of the Tribunal to increase an award made to a claimant within
the jurisdictions set out in the schedule to the Trade Union and Labour Relations
(Consolidation) Act 1992 is derived from section 207A of
that Act. Section 207A(1) provides:
“The section applies to proceedings before an Employment
Tribunal relating to a claim by an employee under any of the jurisdictions
listed in Schedule A2.”
21.
Sub-section (2) provides:
“(2) If, in the case of proceedings to
which this section applies, it appears to the employment tribunal that—
(a) the
claim to which the proceedings relate concerns a matter to which a relevant
Code of Practice applies,
(b) the
employer has failed to comply with that Code in relation to that matter, and
(c) that
failure was unreasonable,
the employment tribunal may, if it
considers it just and equitable in all the circumstances to do so, increase any
award it makes to the employee by no more than 25%.”
22.
There is no doubt that the discrimination claim in this case constituted
proceedings to which section 207A applied, and that that claim concerned a
matter to which a relevant code of practice, namely the ACAS Code of Practice,
applied. The Tribunal found that the First Respondent had failed to comply
with that code; and, although they did not find in terms that that failure was
unreasonable, they describe the failure as “gross”; and that is sufficient to
show that sub-section (2)(c) of section 207A was satisfied in this
case.
23.
Thus the Tribunal had a discretion, if they considered it just and
equitable to do so in all the circumstances, to increase the award made to the
Claimant for discrimination by up to 25 per cent; and they decided at
paragraph 53 that it was just and equitable to do so and to do so by the
maximum amount, by 25 per cent. Mr Kazantzis submits that that
increase, commonly described as an “uplift”, when made became part of the award
of compensation for discrimination, and therefore it had to be ordered by the
Tribunal that each of the three Respondents was jointly and severally liable
for not only the £3,000, which we have addressed under ground 1 of this
appeal, but also for the £750 uplift. In declining to do so the Tribunal were,
it is submitted, in error of law.
24.
However, at paragraph 61, the Tribunal concluded that the
responsibility for the uplift rested with the employer, the First Respondent,
but not with either the Second or Third Respondent, who had not, on the facts
as found, directly influenced the way in which the grievance process had been
handled. The facts as found to which the Tribunal were referring in
paragraph 61 are those set out at paragraphs 34‑39, which we
have already summarised. The history of what happened to the grievance process
did not involve either the Second or the Third Respondent. If a Claimant were
to be the victim of discrimination by her employer by reason of the acts of
employees A and B over a period and then by reason of the acts of employees C
and D over a separate period for which A and B were in no sense responsible,
the employer would of course be responsible for the whole of the Tribunal’s
award of compensation for that discrimination, but A and B would not be the
equivalent in employment law terms of joint tortfeasors with C and D; and vice
versa. The damage which A and B had caused would have taken place at a
different time from, and would have caused different loss from, the damage
caused by C and D; the damage would be divisible; and in such a case the
principle set out in Sivanandan would permit the Employment
Tribunal to hold A and B liable only for that part of the damage attributable
to their acts or failures to act and to treat C and D similarly.
25.
In our judgment, there is no reason why that principle should not be
applied in a case where the individual Respondents are jointly and severally
liable together with the employer for the discrimination but have played no
part at all in the actions or inactions which have caused the award of an
uplift. The uplift is, of course, added to the award and becomes part of the
award. To that extent we accept Mr Kazantzis’ argument; but once it
becomes part of the award, we see no reason why the principle to which we have
referred should not apply to that part of the award as it would apply to any
other part of the award. In our judgment, that principle does apply to the
uplift part of the award because, on the Tribunal’s findings of fact, the Second
and Third Respondents were not in any way responsible for: the handling of the
grievance process or for the uplift part of the award. It was the subsequent
acts of others which were responsible for that part of the award. Therefore,
in our judgment, the Tribunal were correct in not ordering the Second and Third
Respondents to pay any part of that uplift; and we reject the second ground of
this appeal.
Two heads rather than one
26.
Under this head of the appeal, Mr Kazantzis’ argument is very
straightforward. Although at one time he was minded before the Tribunal to
accept that apportionment applied to an award for loss of earnings awarded as
compensation for discrimination, he tells us that he resiled from that and
asked the Tribunal to order joint and several liability for such loss of
earnings. What the Tribunal did was, firstly at paragraph 55, to say that
responsibility for loss of earnings rested with the First Respondent and not
with any individual employees or officers; and secondly, and in any event, to
award to the Claimant her loss of earnings in the 11‑week period for
which she was kept out of work by reason of what the Tribunal found to be sex
discrimination under the head of unlawful deductions from wages and to decline
to award anything for loss of earnings under the head of sex discrimination,
because, as we have earlier set out, the Claimant had been fully compensated
under the complaint of unlawful deductions from wages (see paragraph 75).
That, submits Mr Kazantzis, was wrong in law. It is clear from the
findings of the Tribunal that the responsibility for the Claimant being kept
out of work for the 11‑week period was that of the Second and Third
Respondents. The Tribunal were bound to award compensation for the loss of
earnings during that period under the head of sex discrimination. The fact
that they were making an award of money in respect of unlawful deductions from
wages did not absolve the Tribunal from a need to award under the sex
discrimination head, particularly when the result was that what ought to have
been a joint and several liability of the Second and Third Respondents and the
employer to pay the loss of earnings as compensation for sex discrimination
became an award of the same sum but only against the employer when awarded
under the unlawful deduction head.
27.
We can see no answer to these submissions. Of course, if there can be
no difference in terms of amount, period, the identity of the Respondents who
are liable or the nature of that liability between an award of compensation
under one head and an award under another, then the Tribunal is entitled to
make their award under one head only. There would be no purpose in making an
entirely overlapping award against the same Respondents under two heads; but
that was not the case here. The Tribunal did not know that they could not in
law apportion the liability for compensation for sex discrimination between the
three Respondents because they followed Way; but in law they were
obliged to hold that all three were jointly and severally liable. By awarding
the losses in respect of the 11 weeks under the head of unlawful deductions
from wages only they deprived the Claimant of an award in respect of that sum
against the Second and Third Respondents.
28.
In the light of the law as it now is, as a result of the decisions in Sivanandan
and Bungay, the Tribunal had no discretion to make an
apportionment; they ought to have made, as we have said in relation to ground 1
of this appeal, a joint and several liability order against all three
Respondents in relation to the award for injury to feelings; and they ought to
have made a similar award in relation to loss of earnings. Of course they
would need to say something which would ensure that there was no double
recovery; but that would have provided no difficulty. We have no doubt that,
had the Tribunal appreciated that the law was not what they thought it to be,
they would not have said what they said in paragraphs 55 and 75.
They should have made a joint and several award of the appropriate loss of
earnings against all three Respondents under the sex discrimination head, and
by not doing so, although they could not have known that at the time, they were
in error of law. Thus the Claimant succeeds in the third head of her appeal;
and the appeal is allowed to the extent that we have set out.
Disposal
29.
We will need to discuss what the terms of the order resulting from our
decision should be. We note that the award both of loss of salary in the 11
weeks and also for holiday pay were made in gross terms. Mr Kazantzis has
agreed that that would appear to have been a mistake and that we should make
our order in net terms; and we are grateful to him for giving us some of the
appropriate figures.
