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Apportioning HR awards

BY Hussain Kayani
Employment law
BG Purple

It is not uncommon for more than one party to be sued in respect of an act of HR.  Often, a disgruntled employee will take action against individuals who they allege have committed the acts of HR as well as their employer.

Tribunals can, and frequently do, find more than one party liable for the discriminatory acts.  Can such awards be apportioned between the guilty parties or are each jointly and severally liable for the full award i.e. can the aggrieved employee recover the full sum against any one of the guilty Respondents?  

This was the issue addressed in the case of London Borough of Hackney v Sivanandan & ors, a claim that has been dragging on for some 12 years!  The tribunal awarded the employee almost £425,000 in respect of her claim for HR.  The award was apportioned between the Council (£421K) and one of the employees (£2,000).  The Court of Appeal found that this was impermissible and that tribunals do not have the power to apportion awards for the same act of HR between the guilty parties. 

In practice, in such cases, the successful Claimant will almost always seek to enforce the award against the employer, as they will normally be in a position to pay such an award.  If, however, the employer is not in a position to pay, for example due to insolvency, the successful Claimant may be able to pursue individual Respondents for some or all of the award.  Something that is always worth pointing out to employees in equal opportunities training! 

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