In the recent case of Baldwin v Cleves School and others [2024] EAT 66 the Employment Appeal Tribunal (EAT) has held that staff members must be held liable for acts of discrimination they committed as individuals in the course of their work at the school.
The case concerned Miss Baldwin who worked as a newly qualified teacher at the school from September 2014 until she resigned on 18 March 2015. Miss Baldwin had experienced ill health before accepting the role and as a result had not completed her PGCE due to late submission of some assessments. The original employment tribunal (ET) found two acts of discrimination proven. The first related to Ms Miller (the Claimant’s NQT Mentor and Third Respondent in the case) who had written to Miss Baldwin’s PGCE tutor seeking “further light” on the Claimant’s health. The second act of discrimination upheld related to an NQT report on the Claimant completed by Mr Hodges (the Head and Second Respondent in the case) which commented that the Claimant had “not acted with integrity at all times” without sufficient evidence.
The original ET held that the school was vicariously liable for the acts of discrimination committed by Ms Miller and Mr Hodges under section 109 of the Equality Act 2010 (“the Act”) as they were committed during the course of employment. However, the ET declined to make any finding of personal liability against Ms Miller and Mr Hodges themselves under section 110 of the Act even though they were listed as parties to the claim. The ET reasoned that the case put was essentially made against the school which was vicariously liable for its employees. The ET felt the acts of the Ms Miller and Mr Hodges, whilst discriminatory, were only “misguided” and that therefore they should not be individually liable.
The EAT rejected this reasoning of the ET and overturned its decision. The EAT analysed the provisions of sections 109 and 110 of the Act. It considered that there was no discretion available to the ET not to find the individual staff members liable. Section 110 of the Act is clear that, where an individual is considered to have committed a discriminatory act for which their employer is liable under section 109 of the Act, that person will also be liable as an individual under section 110 of the Act. The EAT also considered the context and legislative history of section 110 of the Act and concluded that it was intended by Parliament to have a “broad, not narrow, reach”.
Accordingly, the EAT allowed the appeal and substituted findings that Ms Miller and Mr Hodges had breached section 110 of the Act.
Closing comments
This interesting case is a salutary reminder that individual staff members can be personally liable in the employment tribunal for any acts of discrimination they may commit. If an employment tribunal finds that acts of discrimination committed by an individual occurred in the course of employment, then it will follow that the individual is also personally liable (unless they rely on a statement by their employer that doing that thing was not a breach of the Act). Tribunals do not have discretion to remove personal liability. However, tribunals may exercise their discretion at the remedy stage in choosing how to apportion any compensation payable in respect of those acts of discrimination.
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