10 June 2011
It has been confirmed that where an employer and an employee are found to be jointly liable for discrimination, they are both equally liable for the damages. This won`t be apportioned between the discriminators. Accordingly, the claimant can recover damages against whichever party he or she chooses, for example, where one party is not solvent.
In London Borough of Hackney v Sivanandan (2011)
the claimant brought claims for sex and race discrimination against a charity and Hackney Council, which funded the charity. She also named employees of the council and the charity as respondents in the proceedings.
The EAT held that, where there are multiple respondents and particular losses cannot be attributed to one party, employment tribunals must award compensation on a joint and several liability basis, meaning that the claimant can claim the entire amount from any respondent.
Of course, this only applies to "indivisible" damages and not cases where the tribunal has a logical basis for attributing blame for particular losses to individual parties. In those cases, damages can be apportioned according to the losses caused by each discriminating party.
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