Principles of compensation

28 Nov 2011

Berrymans Lace Mawer LLP solicitor Malcolm Keen considers apportionment in discrimination claims in the following article published in New Law Journal.

Joint account?

Two recent Employment Appeal Tribunal (EAT) decisions have cast doubt on previous authority relating to joint tortfeasors, and provided guidance relevant not only to discrimination claims but also to tort more generally. In London Borough of Hackney v Sivanandan [2011] IRLR 740, the claimant successfully brought claims for sex and race discrimination against a race relations body. The race relations body and the local authority (with which it worked) were held vicariously liable. The respondents fell into two groups:

those associated with the race relations body; and
the local authority and its employee.

A remedy hearing decided that liability should be apportioned between the local authority employee and the other respondents. The award against the local authority employee should be limited to £1,250 in respect of injury to the claimant’s feelings.

In relation to the other respondents, the tribunal proceeded on the basis that it had a discretion whether to apportion liability between the local authority and the race relations body respondents, or to make a joint and several award—in which each respondent was liable for the whole amount. The tribunal relied on Way v Crouch [2005] IRLR 603, [2005] All ER (D) 40 (Jun), and considered that it was entitled to apportion liability between parties on the basis set out in s 2 of the Civil Liability (Contribution) Act 1978 (CLIA 1978), i.e. according to what was “just and reasonable having regard to the extent of that person’s responsibility for the damage in question”. However, the tribunal decided that all the respondents should be jointly and severally liable to pay the claimant £421,415. The local authority appealed against the decision that the award be joint and several. The claimant argued that the tribunal had no power to apportion in the first place.

EAT’s findings in Sivanandan

Underhill P acknowledged that apportioning liability between employee and employer respondents has not been uncommon but doubted whether it did practical justice. For example, the EAT did not see why it was just that the claimant should bear the risk of the respondent employee being unable to meet that part of the liability apportioned to him or her. Underhill P noted that unlawful discrimination under the Sex Discrimination Act 1975 and the Race Relations Act 1976 is a statutory tort. Compensation for loss caused by unlawful discrimination follows the ordinary principles of tort. Underhill P provided guidance on the rules of apportionment:

Where the same indivisible damage is caused by concurrent tortfeasors, ie joint tortfeasors liable for the same act, or tortfeasors who separately contribute to the same damage, each tortfeasor is liable for the whole of the damage.
In the situation at (i) above, one tortfeasor who is liable to the claimant for all the damage may, under the CLIA 1978, claim contribution from other tortfeasors who have contributed to the damage. This is apportionment between tortfeasors—it has no impact on the liability each of them has to the claimant.
Where the damage is divisible, i.e. one can distinguish between the damage caused by different tortfeasors, each tortfeasor is liable to the claimant only for that part of the damage attributable to it.

Underhill P noted that if employer and employee are jointly liable, on ordinary principles there is no basis for apportionment. The CLIA 1978 has no bearing on the liability of concurrent tortfeasors to the claimant. In Sivanandan, the ordinary rules applied. The tribunal had no power to make an apportionment, and the EAT dismissed the local authority’s appeal.

Bungay

The EAT considered Way and Sivanandan in Bungay v Saini UKEAT/0331/10/CEA, concerning religious discrimination. Compensation was awarded jointly and severally against the religious centre at which the claimants worked, and against two members of the board. Silber J considered that the correct approach to compensation for loss caused by unlawful discrimination should be to follow the ordinary principles of tort. Silber J agreed with Underhill P’s approach to indivisible damage caused by concurrent tortfeasors—each is liable for the whole of that damage. Silber J was clear: “The time might well have come when Way should no longer be relied on or even cited as accurately representing the law.”

Understanding apportionment

Sivanandan and Bungay help explain apportionment in discrimination claims. They illustrate how the concept of apportionment can be misunderstood. Where the damage is indivisible, caused by concurrent tortfeasors, the relative responsibility of the tortfeasors may be relevant to contribution as between them but it is not relevant to their liability to the claimant.

Malcolm Keen is a solicitor at national law firm Berrymans Lace Mawer LLP.
E-mail: malcolm.keen@blm-law.com
Website: www.blm-law.com

This article is not a substitute for specific legal advice and should not be relied upon as such.

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Disclaimer: This document does not present a complete or comprehensive statement of the law, nor does it constitute legal advice. It is intended only to highlight issues that may be of interest to clients of Berrymans Lace Mawer LLP. Specialist legal advice should always be sought in any particular case.

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