Ok so we all know that employers can be vicariously liable for the actions of their employees, right? For the purposes of the Equality Act 2010, anything done by an employee in the course of their employment is treated as having also been done by the employer, regardless of whether the employee's acts were done with the employer's knowledge or approval.

But what about the personal liability of the individuals who are alleged to have discriminated? In the recent case of Baldwin v Cleves School and others [2024] EAT 66 there is a stark reminder that if there has been an act of discrimination, in addition to the employer being liable, the individuals involved can be too. In that case

a colleague/mentor together with a head teacher were both sued personally and found to have liability for a breach of the Equality Act 2010 in respect of a newly qualified teacher (in addition to the employing school).

In that case,  Miss Baldwin’s mentor and fellow teacher at the school was a named Respondent in the litigation (M). At the time Miss Baldwin had begun employment, she had not completed her postgraduate certificate due to ill health. M contacted Miss Baldwin’s postgraduate tutor asking for information on her ill health. Miss Baldwin spoke to M and stated that she had been unprofessional to "go behind her back". The headteacher emailed Miss Baldwin stating that he did not agree that M had been unprofessional, and that he was concerned about how Miss Baldwin had handled M's request for information. Miss Baldwin’s second complaint was that the headteacher had written a report which included a comment that she lacked integrity.

The Tribunal described the individual Respondents actions as "misguided" but said that they were trying to address a complex situation and that their main failing was not obtaining HR advice in good time.

The EAT considered that the Tribunal had no discretion but to find the individuals personally liable when the breach of the legislation had occurred. For the avoidance of doubt this means that both employer and employee can be held jointly and severally liable for any award of compensation which can be unlimited in nature. The Tribunal also has the ability to make specific judgments requiring each of the respondents to pay specific awards of compensation.  

Bear in mind too, that it is not necessary for the Claimant to actually sue the employer in order to make a claim against a respondent employee, provided the Claimant can establish that the employer would have been liable. However, claimants do usually also sue the employer as they are more likely to have the means to pay a discrimination award.

At CG we champion training and effective policies to try and ensure that discrimination risks are minimised. If you could benefit from further support in this area do not hesitate to contact the CG Employment team.