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29 January 2013
Court of Appeal (Civil Divison)
Mummery, Rimer and Pitchford LJJ
When a tribunal concludes that a number of different respondents were liable for the same acts of discrimination or victimisation, each of those respondents remains liable for the full amount of compensation awarded. The tribunal has no power to apportion liability between the respondents.
S brought discrimination complaints against her employer (a charity funded partly by the council) and the council. Later she applied unsuccessfully for two jobs at the charity. The interview panel included W, a representative of the council. S complained of victimisation by W. W and the council and the executive members of the charity were held liable. A small award of compensation was made against W but, at a later hearing, a very much larger award was made against the council. The practice of apportioning liability between respondents was based on the EAT's decision in Way v Crouch.
The council appealed, arguing that once the tribunal had determined the compensation owed by W, it could not then award the much larger sum against the council.
The Court of Appeal held that the tribunal had no power to award different amounts in respect of the same act of discrimination. Way v Crouch was wrongly decided and was overruled. All respondents were jointly and severally liable for compensation. But although the tribunal was wrong to award a smaller amount against W, it was clear that, when doing so, it was not determining the full amount of compensation. The council therefore remained liable for the full amount of the compensation.
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