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Apportioning liability between respondents

There can be more than one respondent in a discrimination claim, often the employer and the line manager who is alleged to have carried out the discriminatory act. In Brennan & Ors v Sunderland City Council & Ors, however, the respondents were the Council, GMB and Unison. The case involved 1050 equal pay claims against the Council in relation to productivity bonuses, along with sex discrimination claims against GMB and Unison. The Council served a notice on the trade unions stating that, if the Council was found to be liable to pay compensation, it would seek a contribution from them.

The EAT was asked to consider the question of apportionment and confirmed that although tribunals can make joint and several awards against a number of respondents they do not have the power to apportion liability between them. Apportionment of the total award should be considered if necessary by the civil courts at a later stage.

This decision follows a number of English EAT cases on apportionment, decided by looking at the wording of the discrimination legislation and the Civil Liability (Contribution) Act 1978. In Scotland apportionment would be considered in terms of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1940. This is not identically worded but it seems likely that the same principles would apply.

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