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Beware of the barrister: apportioning liability for discrimination

Employees (and ex-employees) often bring discrimination claims against multiple respondents, most commonly against their employer and one of their colleagues as an individual. In the recent case of London Borough of Hackney v Sivanandan, the Court of Appeal considered how compensation for discrimination should be apportioned between multiple parties.

Ms Sivanandan, a race equality adviser who subsequently trained as a barrister, unsuccessfully applied for two jobs at Hackney Action for Race Equality (HARE). She raised sex and race discrimination claims against multiple respondents, including the Borough, Ms White (a Borough employee who assisted HARE with Ms Sivanandan’s interviews) and several of HARE’s members.

The Employment Tribunal ordered Ms White to pay £1,250 compensation. It also held the remaining respondents jointly and severally liable for £421,415 compensation. This meant Ms Sivanandan could claim the whole £421,415 against any one of the remaining respondents.

The Borough appealed the decision, arguing that the ET should have apportioned the liability between the respondents and made each respondent liable for a fixed sum. The Employment Appeal Tribunal dismissed the appeal, holding that when the damage done is “indivisible”, compensation cannot be apportioned in this manner.

This case is a warning to employers that, even if they are one of a number of multiple respondents, a successful claimant may claim the entirety of a compensation award from them. This would be particularly likely to happen should one or more of their co-respondents become insolvent.

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