The fracas surrounding Jeremy Clarkson and ‘that punch’ continues with the recent news reports that he now faces a discrimination claim from the injured producer, presumably being named as the second respondent along with the BBC. Recent reports also suggest that Jose Mourinho faces similar discrimination allegations from Eva Carveiro, the recently departed doctor at Chelsea FC. Adding individual employees as Respondents to a tribunal claim can be seen as potentially two bites at the cherry and/or an evidential double edged sword, for example if the accused employee is no longer in the employer’s employment.
An employer can be "vicariously liable" for discrimination committed by an employee in the course of employment. However, there is a defence available to an employer if it can show that it took all reasonable steps to prevent the employee from doing the discriminatory act or from doing anything of that description. In addition, under the Equality Act 2010, an employee can be personally liable for unlawful discrimination committed by them in the course of their employment. Under s.110(2) EqA it does not matter whether in the proceedings the employer is found not to have contravened the Act; meaning that an employee who discriminated against a colleague would not escape liability simply because the employer successfully argues the ‘reasonable steps’ defence.
In terms of compensation, if a Claimant is successful in their claims for the same damage against one or more Respondents, those respondents shall be jointly and severally liable for any award of compensation. Case law confirms that Tribunals do not have the power to apportion liability between respondents. Where an individual respondent has little or no money, it would be pointless pursuing the damages from them. However, in the case of wealthy Respondents (presumably such as Clarkson and Mourinho) the situation would be different. Following the principles in tort law a Claimant could seek 100% of the damages from any of the Respondent – whilst it is unlikely that if successful the Claimant would pursue Mr Clarkson (or Mr Mourinho) for all the damages awarded, it could prove to be a rather costly episode for them (and I won’t even begin with the PR ramifications).
What these cases do serve as a reminder is that individuals are not above the law and cannot necessarily hide behind any protection or defence that their employer might deploy. In addition, employers need to ensure that all their staff receive equal opportunities training; that they have an up to date equal opportunities policy and that all reasonable steps are taken to ensure that unlawful discrimination does not occur: to place them in the best position possible to defend a claim.