The Employment Appeal Tribunal has made it clear that tribunals have no discretion in finding (or not finding) a contravention of section 110 of the Equality Act 2010 (Liability of Employees and Agents), should the liability conditions for individual employees or agents be satisfied.
In Baldwin v Cleves School and others [2024] EAT 66 (EAT May 2024) the Claimant worked as a newly qualified teacher at a school. She was disabled under section 6 of the Equality Act 2010. The Claimant’s mentor (also a teacher at the school) contacted her postgraduate tutor asking for information on the Claimant’s ill health, as she had cited her health as to reasoning for why she had not completed her postgraduate certificate. The Claimant told her mentor that it had been unprofessional of her to “go behind her back”. The headteacher informed the Claimant that he did not believe her mentor had been unprofessional, and that he was concerned about how she had handled the mentor’s request for information. The headteacher had also written a report in which it was suggested that the Claimant lacked integrity.
At first instance the tribunal found that the school was liable in its capacity as employer under section 109 of the Equality Act 2010 for the acts of discrimination on grounds of disability by the Claimant’s mentor and the headteacher. It dismissed the separate claims against the individual employees, finding that though their acts were misguided, they were merely attempts to address a complex situation.
On appeal, the EAT ruled that both the mentor and the headteacher were individually liable under section 110. The tribunal had no implicit discretion in section 110 to find that an employee did not contravene section 110 in circumstances where the employer itself was liable under section 109 – neither section was subsidiary to the other. Further, section 110 did not explicitly give the tribunal a discretion to find (or not find) a contravention of that section if the conditions for individual liability under it were met.
Practical tip
An individual member of staff contravenes section 110 if they are:
- an employee or agent (within the broad meaning of those terms in the Equality Act);
- carry out a discriminatory act in the course of their employment or engagement;
- that act amounts to a contravention of the Equality Act by their employer or principal; and
- none of the express exceptions in section 110 apply.
Employees and agents can be personally liable for discrimination, as well as and alongside the vicarious liability of employers for the acts of their employees and agents. Therefore, diversity, inclusivity and equal opportunities training for managers, in particular, is essential. Apart from emotional support, managers embroiled in tribunal litigation may require financial support in obtaining separate independent legal advice.
