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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Bungay & Anor v Saini & Ors (Race Discrimination : Vicarious liability) (Rev 1) [2011] UKEAT 0331_10_2709 (27 September 2011)
URL: http://www.bailii.org/uk/cases/UKEAT/2011/0331_10_2709.html
Cite as: [2011] UKEAT 0331_10_2709

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Appeal No. UKEAT/0331/10/CEA

 

 

EMPLOYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

 

 

At the Tribunal

On 15 July 2011

Judgment handed down on 27 September 2011

 

 

Before

THE HONOURABLE MR JUSTICE SILBER

MR T STANWORTH

MS P TATLOW

 

 

 

 

 

(1) MR D BUNGAY

(2) MR S PAUL APPELLANTS

 

 

 

 

 

 

(1) MR G SAINI

(2) MR J CHANDEL

(3) ALL SAINTS HAQUE CENTRE (IN COMPULSORY LIQUIDATION) RESPONDENTS

 

 

 

Transcript of Proceedings

 

JUDGMENT

 

 

 


 

 

 

 

 

 

 

APPEARANCES

 

 

 

 

 

For the Appellants

MR R DE MELLO &

MR T MUMAN

(of Counsel)

Instructed by:

Aspect Law Ltd

Globe House

3 Bradford Place

Walsall

WS1 1PL

For the First Respondent

 

 

 

 

 

 

 

 

For the Second Respondent

 

 

 

 

 

 

 

For the Third Respondent

MR J McCRACKEN

(of Counsel)

Instructed by:

Hatton James LLP

Avon House

435 Shirley Road

Solihull

B90 4AA

 

MISS K DONNELLY

(of Counsel)

Instructed by:

The Wilkes Partnership

41 Church Street

Birmingham

B3 2RT

 

Debarred

 

 


SUMMARY

RACE DISCRIMINATION

Vicarious liability

Post employment

 

The Appellants were members of the board of a Centre. As a result of decisions of the Employment Tribunal and the Employment Appeal Tribunal, it was held that the Appellants had unfairly dismissed the Respondents, who were employees of the Centre and that they had unfairly discriminated against them on the grounds of their faith.

 

At a remedies hearing, it was held that the Appellants and the Centre were jointly and severally liable for the discrimination damages payable to the Respondents and that those damages could also take account of the post-employment conduct of the Appellants.

 

The Appellants appealed.

 

Held: dismissing the appeal because:-

 

(a)   the Appellants were agents of the Centre within Regulations 22 and 23 of the Employment Equality (Religion or Belief) Regulations 2003 as they were acting within their authority when managing the Centre and the regulations had to be construed in a purposive manner (Jones v Tower Boot [1997] ICR 254 followed) and all that needed to be shown to make the Appellants liable was that they were authorised to manage the centre in a way which was capable of being done in a lawful manner (Lana v Positive Action Training Housing (London) [2001] IRLR 501 applied). On that basis, the Employment Tribunal was entitled to find the Appellants liable under those regulations;

 

(b)  The Appellants were jointly and severally liable as they contributed to the same damage to the Respondents (London Borough of Hackney v Sivanandan and others [UKEAT/0075/10] applied and Way v Crouch [2005] IRLR 603 disapproved); and

 

(c)   The aggravated damages could take account of the post–employment conduct of the Appellants (Zaiwalla v Walia [2002] IRLR 697 applied).

 

 

 


THE HONOURABLE MR JUSTICE SILBER

Introduction

1.            Mr J Chandel was employed from 1996 by the All Saints Haque Centre (“the Centre”) and he became its Company Secretary and Project Manager in 1997 and these were positions he held until his dismissal on 7 July 2006.  Mr G Saini was also employed at the Centre as a Senior Advice Worker until his resignation, which was received on 12 July 2006.

 

2.            By a unanimous decision of the Employment Tribunal sitting in Birmingham and registered on 3 March 2008 (“the liability decision”), it was held that Mr Chandel had been unfairly dismissed and discriminated against on grounds of faith while Mr Saini had been unfairly dismissed.  His claims of discrimination on grounds of religious faith and harassment were dismissed.  The Respondents to those claims were the Centre, Mr D Bungay (who was the Chairman of the Board of the Centre) and Mr S Paul, who was a member of the Board.

 

3.            Mr Saini appealed against the decision of the Employment Tribunal and by a decision of this Employment Appeal Tribunal handed down on 24 October 2008 (UKEAT/0227/08), the appeal of Mr Saini was allowed in that it was held that the Respondents had discriminated against him by harassing him on grounds of religion.

 

4.            By a further decision sent to the parties on 1 April 2010 (“the remedies hearing”) and which is the subject of the present appeal, compensation awards were made in favour of Mr Saini and Mr Chandel as Mr D Bungay and Mr S Paul (collectively referred to as “the Appellants”) as well as the Centre were held to be jointly and severally liable for the damages which included aggravated damages. The Centre is in compulsory liquidation and it has played no part in the present appeal.

 

5.            The grounds of appeal, which the Appellants have permission to pursue, are that the Employment Tribunal erred in: -

(a)   Finding the Appellants to be “agents” within Regulations 22 and 23 of  the Employment Equality (Religion or Belief) Regulations 2003 (“the 2003 Regulations”);

(b)  Ordering both Appellants to be jointly and severally liable in respect of the damages payable to both the Respondents; and

(c)   Having regard to the post-employment conduct of the Appellants in assessing the aggravated damages payable to the Appellants.

 

6.            The background to this case is that the Centre was a not-for-profit advice centre located in Wolverhampton and which had been incorporated as a company on 8 May 1997.

 

7.            Mr Chandel was summarily dismissed on 7 July 2006 purportedly on the grounds of gross misconduct.  He brought a claim in the Employment Tribunal on grounds of unfair dismissal, discrimination on grounds of his faith and wrongful dismissal.  He named the Appellants and the Centre as respondents and he claimed that they:-

 

“are responsible for steering through the claims of gross misconduct against [him] (and fabricating evidence in support of those claims) to disguise the real reason behind [his] dismissal being that he is of a different religious belief” (Mr Chandel’s Statement of Case paragraph 5 [67]).

 

8.            Mr Saini made similar complaints to those made by Mr Chandel.  After a hearing on liability lasting 11 days, the Employment Tribunal, as we have explained, found that Mr Chandel had been unfairly dismissed, discriminated against on grounds of his faith and wrongly dismissed.

 

9.            The Employment Tribunal found in relation to the actions of the Appellants concerning Mr Chandel that: -

a.           Mr Bungay and Mr Paul had told Mr Dass (a fellow director) that they wanted to get rid of Mr Chandel because “he is not one of us, he is bloody Hindu (“Barber”)” (a pejorative reference) (paragraph 14). The Tribunal then explained that “The reference to ‘Barber” is pejorative; barbers are found amongst the lowest caste of Hindu”;

b.           The disciplinary hearing on 19 June 2006 “was an opportunity to subject [Mr Chandel] to humiliation and ridicule” had been “orchestrated by” Mr Bungay (paragraphs 26-7);

c.           Mr Bungay’s letter sent to Mr Chandel on 27 June 2006 “clearly indicated that [Mr Bungay][had no interest in conducting a fair hearing but merely concluding the disciplinary process to Mr Chandel’s disadvantage”;

d.           In Mr Chandel’s case the evidence was that he as a Manager had been subjected to a disciplinary process which was open to severe criticism…The prime movers in this exercise had been [Mr Bungay and Mr  Paul], both Ravidassi…” (emphasis added, paragraph 68);

e.           …the tribunal found that [Mr Bungay and Mr Paul] had been aggrieved not simply that their employment relationship (in the case of Mr Paul) or voluntary post (in the case of [Mr Bungay]) had been terminated but also that Mr Chandel had not been prepared to take steps to ensure that they were retained in post if necessary at the expense of non-Ravidassi staff.  They had then set out on a course of action designed to ensure that Mr Chandel was removed from his post.”  (emphasis added, paragraph 68); and that

f.            “…the fact of Mr Chandel’s belief was a substantive and effective cause for the action that was orchestrated by [Mr Bungay and Mr Paul]  together with the other members of the board” (emphasis added, paragraph 68).

 

10.         As I have explained, the Employment Appeal Tribunal found that the Employment Tribunal had erred in not holding on the facts found by them that the Appellants had subjected Mr Saini to discriminatory harassment in breach of regulation 5.

 

11.         The Employment Appeal Tribunal founding respect of Mr Sani  that:-

 

“30.. it is plain from the Tribunal’s conclusions that they were readily satisfied that the reason why the [appellants] mistreated [Mr Saini] and that the way they did was not simply their desire to get rid of Mr Chandel but their desire to get rid of him because he was Hindu.  Their animosity to Mr Chandel was, on the Tribunal’s findings, solely because his was Hindu the extent of their determination to bring to bear against the Hindu element at the Centre and to further the cause of Ravidassis was, on the Tribunal’s findings really quite profound.  In these circumstances the desire to get rid of Mr Chandel cannot be separated from its impetus namely the [appellants’] anti Hindu policy. Thus, if, as the Tribunal found, the way in which [Mr Saini] was treated was because of the wish to remove Mr Chandel it was also because of that policy. That policy was a discriminatory one and the only conclusion that can, in all the circumstances, follow is that the [appellants’’] treatment of the Claimant was harassment, that it was on grounds of religion and that it was contrary to Regulation 5.

 

12.         The Employment Appeal Tribunal went on to hold that the Appellants had discriminated unlawfully against the Appellant by harassing him on grounds of religion contrary to paragraph 5 of the 2003 Regulations.

 

13.         After the remedies hearing lasting three days, the Employment Tribunal awarded Mr Saini:-

(a)   £21,984.08 compensation for unfair dismissal to be paid by the Centre;

(b)  Damages of three weeks notice pay of £1164.42, arrears of holiday pay in the sum of £396.16 and arrears of wages in the sum of £18.12 to be paid by the Centre;

(c)   £9,000 plus interest of 1023.05 as damages for injuries to his feelings claim for harassment on the grounds of religion or belief to be jointly and severally paid by the Centre and the Appellants;

(d)  Damages of £6,500 plus interest of £334.03 as aggravated damages to be jointly and severally paid by the Centre and the Appellants.

 

14.         Mr Chandel was awarded:-

(a)   £62,750.20 as compensation for unfair dismissal to be paid by the Centre;

(b)  £7033.95 as ten weeks pay in lieu of notice also to be paid by the Centre;

(c)   £12,000 plus interest of £1,386.77 as compensation for direct discrimination on grounds of religion or belief to be jointly and severally by the Centre and the Appellants;

(d)  Aggravated damages of £6,500 plus interest of £334.03 to be jointly and severally paid by the Centre and the Appellants.

 

15.         The appeal is only in respect of findings (c) and (d) in both the awards and which are the only awards against the Appellants.

 

Whether the Tribunal was wrong in law to find the Appellants to be “agents” within regulations 22 and 23 of the 2003 regulations

16.         Regulations 22 and 23 of the 2003 Regulations provide insofar as is material  that:-

 

“Liability of employers and principals

22.—(1) Anything done by a person in the course of his employment shall be treated for the purposes of these Regulations as done by his employer as well as by him, whether or not it was done with the employer’s knowledge or approval.

(2) Anything done by a person as agent for another person with the authority (whether express or implied, and whether precedent or subsequent) of that other person shall be treated for the purposes of these Regulations as done by that other person as well as by him.

Aiding unlawful acts

23.—(1) A person who knowingly aids another person to do an act made unlawful by these Regulations shall be treated for the purpose of these Regulations as himself doing an unlawful act of the like description.

(2) For the purposes of paragraph (1) an employee or agent for whose act the employer or principal is liable under regulation 22 (or would be so liable but for regulation 22(3)) shall be deemed to aid the doing of the act by the employer or principal.”

 

17.         The Employment Tribunal concluded that:-

 

“6. That liability could be established under Regulation 22(2) where the two [appellants] concerned had been acting in their capacity as directors as agents for the [Centre]. The effect that Regulation 23(2) was that it created liability as though under Regulation 23(1) that is to say that the [appellants] are deemed by Regulation 23(2) to have aided the [Centre] to discriminate and so by virtue of Regulation 23(1) to have acted unlawfully themselves if liable as agents.”

 

18.         As we have explained, the Employment Tribunal found the Appellants to be agents and the first ground of complaint of the Appellants was that Mr Saini and Mr Chandel had not pleaded that the Appellants were acting in their capacity as agents for the Centre.  No point was taken on this pleading issue in front of the Employment Tribunal and, in any event, this complaint is not the subject of a ground of appeal in respect of which the Appellants have been given permission to pursue.  That means that it cannot be pursued on this appeal, but even if the Appellants were entitled to raise this contention, I would have had to reject it as there is no evidence, let alone cogent evidence, that the Appellants have been prejudiced by this issue being raised as they have no answer to it, as we will now explain.

 

19.         The main complaint made by the Appellants is that the Employment Tribunal erred as a matter of law in finding that they acted as agents for the Centre and that no finding had been made in this respect in the liability decision.  This submission ignores the fact that there was no need to deal in the liability decision with the issue of whether the Appellants were agents at that stage and what was required was an analysis of the factual findings to determine if the effect of the relevant provisions in the 2003 regulations meant that the Appellants were liable.

 

20.         There was no reason why it could not be pursued for the first time at the remedies hearing where it was treated as a preliminary issue.

 

21.         Mr de Mello, counsel for the Appellants, complains that they were acting as Directors of the Centre acting on their behalf in their capacity as Directors and were therefore not acting as agents for the Centre and also that there has been no finding of agency.  He contends that in the absence of any allegation of fraud, all the actions of the Appellants attributed to the Centre and he relies on the statement in Tesco Supermarkets Ltd v Natrass [1972] AC 153 at 170 that:-

 

“It must be a question of law whether, once the facts have been ascertained, a person in doing particular things is to be regarded as the company or merely as the company's servant or agent. In that case any liability of the company can only be a statutory or vicarious liability.”

 

22.         It is also submitted by him that there was no finding of agency and that neither of the Appellants had acted “in the course of employment” with the Centre so as to make them personally liable to Mr Bungay and Mr Paul in respect of any discriminatory acts within the meaning of Regulations 6, 22 or 23 of the 2003 Regulations. So it is said that there was no jurisdiction to award damages against each of the Appellants, especially as they did not have a contract of employment with the Centre so as to be acting in accordance with their employment.

 

23.         We are unable to accept this submission because the starting point has to be analysis of the common law rules of agency principles which were explained in Bowstead and Reynolds on Agency (18th edition-1-001) and which were approved in Yearwood v Commissioner of Police of the Metropolis [2004] IC 1660 [36] to the effect that:-

 

“Agency is the fiduciary relationship which exists between two persons, one of whom expressly or impliedly assent that the other should act on his behalf so as to affect his relations with third parties, and the other of whom similarly manifests assent so to act or so acts pursuant to the manifestation. The one on whose behalf the act or acts are to be done is called the principal. The one who is to act is called the agent. Any person other than the principal and the agent may be referred to as a third party.”

 

24.         Thus the test of authority is whether when doing a discriminatory act the discriminator was exercising authority conferred by the principal (which in this case was the Centre) and not whether the principal had (namely the centre) in fact authorised the Appellants to discriminate.  Indeed in Lana v Positive Action Training Housing (London) [2001] IRLR 501 Mr Recorder Langstaff QC (as he then was) giving the judgment of this Appeal Tribunal had to consider a provision identical to that in Regulation 22(2) contained in section 14 of the Sex Discrimination Act 1975 when he said in respect of an argument that a party would only be liable for an act of discrimination which was done with the authority “whether expressed or implied whether precedent or subsequent to commit discrimination”:-

 

“32. However, to read this subsection in that way would be to place an almost impossible restriction upon its utility. It is difficult if not impossible to conceive any situation in which a contract could lawfully provide an agent with the authority to discriminate. It seems to us that the proper construction of section 41(2) is that the authority referred to must be the authority to do an act which is capable of being done in a discriminatory manner just as it is capable of being done in a lawful manner.”

 

25.         A similar approach was adopted by this Appeal Tribunal in Victor-Davis v London Borough of Hackney (EAT/1269/01) in relation to section 41 (of the Race Relations Act 1972) which is in the same term of Regulation 22(2).  Judge McMullan QC said that:-

 

“The proper approach was to consider whether, when doing the discriminatory act, the discriminator was exercising authority conferred by the respondent” [23].

 

26.         This approach was also followed by this Appeal Tribunal very recently in the case of Mahood v Irish Centre Housing Ltd [UKEAT/0228/10] [54/58].

 

27.         It therefore becomes necessary to ascertain what authority was conferred by the Centre on Mr Bungay and Mr Paul.  It was held in the liability decision that Mr Bungay was the Chairman of the Board that managed the Centre while Mr Paul was also a member of that Board.  It is clear from the Articles that the Board, which included the Appellants, had the power to manage business of the Centre.  The liability judgment makes it clear first that the Appellants were the prime movers in the discrimination campaign against Mr Chandel and Mr Saini and second that this was a campaign carried out in the name of the Centre and in the Appellants’ work as Directors.

 

28.         Miss Kathleen Donnelly counsel for Mr Chandel makes the very valid point that this conclusion is fortified by the fact that to hold that a director acting in the course of a disciplinary process as the Appellants were, were not then acting as agents within the 2003 Regulations would defeat the purpose of the legislation.  She pointed out that in Jones v Tower Boot [1997 ICR 254] it was held that in a provision in the Race Relations Act 1976, which was in identical terms to Regulation 22(2), neither a linguistic construction nor its legislative purpose justified an interpretation that applied the doctrine of an employer’s vicarious liability at common law to the words “in the course of his employment”.

 

29.         The Court of Appeal held that it was a question of fact and the circumstances of each case for an Employment Tribunal to determine on the ordinary meaning of the words whether the acts complained of were done in the course of employment.  It is noteworthy that the Court of Appeal stressed the need for a purposive construction.  Thus McCowan LJ said at page 262g:-

 

“A purposive construction accordingly requires section 32 of the Race Relations Act 1976 and the corresponding section 41 of the Sex Discrimination Act 1975 to be given a broad interpretation. It would be inconsistent with that requirement to allow the notion of the "course of employment" to be construed in any sense more limited than the natural meaning of those everyday words would allow.”

 

30.         Later Waite LJ said at page 265 that:-

 

“The tribunals are free, and are indeed bound, to interpret the ordinary, and readily understandable, words "in the course of employment" in the sense in which every layman would understand them. This is not to say that when it comes to applying them to the infinite variety of circumstance which is liable to occur in particular instances - within or without the workplace, in or out of uniform, in or out of rest-breaks - all laymen would necessarily agree as to the result. That is what makes their application so well suited to decision by an industrial jury. The application of the phrase will be a question of fact for each Industrial Tribunal to resolve, in the light of the circumstances presented to it, with a mind unclouded by any parallels sought to be drawn from the law of vicarious liability in tort.”

 

31.         This principle which was also applied by this Appeal Tribunal in Mahood supra [67] and it means that it would be inconsistent with the requirement to give a purposive construction to discrimination legislation to interpret the word “agent” within regulations 22 and 23 in any sense so as to exclude the acts of the Appellants on the facts as found by the Tribunal.

 

32.         Applying those principles, the Appellants were managing the Centre as part of their authority as its directors and so the Tribunal was entitled to conclude that the Appellants were acting as its agents even though they performed their duties in a discriminatory manner.

 

33.         In reaching that conclusion, we have not overlooked the submissions on behalf of the Appellants that none of them have acted “in the course of his employment” with the Centre so as to make them personally liable.  This submission is inconsistent with not only the matters to which we have already referred but also the fact as the Employment Tribunal correctly pointed out, Regulation 23(2) created its own liability as though under Regulation 23(1) that is to say the Appellants were deemed by Regulation 23(2) to have aided the centre to discriminate and by virtue of Regulation 23(1) to have acted unlawfully themselves if liable as agents.

 

Was the Employment Tribunal wrong to order joint and several liability in respect of damages?

34.         The case for the Appellants is that there was no basis to make them jointly and severally liable for the damages awarded to the Respondents in respect of the discriminatory treatment directed at them by the Centre and that there are other directors who are not named as Respondents in the claims.  It is also submitted by Mr de Mello that the Employment Tribunal failed to explain adequately why it made such an order and why it treated the Appellants as sharing equal responsibility for the damage in question while failing to identify the culpability of each Appellant.  In the alternative, it is said by Mr de Mello that the liability for damages of the directors of the Centre should be assessed on a pro rata basis on the basis that the other directors were equally to blame and that the Respondents should not benefit from their omission to include the other directors in their claim.  It was pointed out that the Respondents to the appeal had made a late application to join the other directors but that they had failed in this attempt, but yet the Employment Tribunal failed to take this into account when holding the Appellants jointly and severally liable.

 

35.         The way in which the Employment Tribunal dealt with in the remedies judgment was that  it noted that in the liability judgment:-

 

“9… the Tribunal had found the [respondents] had been the prime movers in the campaigns of discriminatory behaviour which had resulted in the dismissal of both [the respondents] and that they had been instrumental in causing both [respondents] to be arrested. It was entirely appropriate that joint and several liability should be awarded in such cases.”

 

36.         In response, the case for the Respondents is that the Tribunal was correct to conclude that there should be joint and several liability.  Miss Donnelly relies on the decision of the Court of Appeal in Gilbank v Miles [2006] IRLR 538 in which it upheld a finding of the Employment Tribunal that the appellant’s salon manager was jointly and severally liable to pay compensation for acts of pregnancy discrimination against the claimant, notwithstanding that some of the acts of discrimination were carried out by other managers in circumstances in which the appellant’s salon manager could be regarded as having unlawfully aided the discriminatory acts by consciously as she had “consciously fostered and encouraged a discriminatory culture”.

 

37.         The Court of Appeal was apparently not referred to an earlier case of Way v Crouch [2005] IRLR 603 in which this Appeal Tribunal held that an Employment Tribunal had not erred in making an award for sex discrimination on a joint and several basis against the respondent company and its managing director, but that the Tribunal had erred in making the whole of the compensation payable jointly and severally to both respondents.  Judge Birtles giving the judgment of this Appeal Tribunal explained that:-

 

“23…(3) if an Employment Tribunal considers it necessary to make a joint and several award of compensation it must have regard to the language of section 2(1) of the Civil Liability (Contribution) Act 1978… In other words, it is not appropriate in almost any case for an Employment Tribunal to make a joint and several award which is 100% against each respondent.  That is to do violence to the language of s2(1) of the 1978 Act which specifically directs the attention of the Employment Tribunal “to the extent of that person’s responsibility for the damage in question.”

 

38.         This statement is inconsistent with the approach of the Court of Appeal in Gilbank and the reasoning in the remedy judgment in this case that the Appellants had been “the prime movers in the campaign of discriminatory behaviour”, which significantly is very similar to what was said by the Court of Appeal in Gilbank (“consciously fostered and encouraged a discriminatory culture”) as we have explained in paragraph 36 above.

 

39.         In our view, the correct approach to the measure of compensation for loss caused by unlawful discrimination should be to follow the ordinary principles to the law of tort which was  the approach adopted in the Gilbank case and in two further cases decided after the remedies judgment in the present case.  First, in Munchkins Restaurant Ltd and another v Karmazyn and Others [2009] UKEAT/0359/09, Langstaff J giving the judgment of this Appeal Tribunal explained that:-

 

“33. We confess to having very considerable doubts about the part of the decision in Way v Crouch which suggests that as between a Claimant and a Respondent or Respondents the percentage of liability of the Respondents is relevant in the way in which that Tribunal determined. We consider the appropriate principle is that where there is an award of joint and several liability the Respondents or any one of them is liable for the full extent of the damages to the Claimant. As between the Respondents a Respondent may have a right to seek contribution from a co-Respondent, depending upon the relative contribution and responsibility of each of the Respondents to the wrong which has been done, but we do not see how that affects the position of the Claimant, who is entitled, if the award is joint and several, to receive the full extent of his award from any such of the Respondents as he chooses”

 

40.         This issue was then considered further by this Appeal Tribunal presided over by Underhill P in London Borough of Hackney v Sivanandan and Others [UKEAT/0075/10] when it was explained that:-

 

“16..(1) Where the same, “indivisible”, damage is done to a claimant by concurrent tortfeasors – i.e. either tortfeasors who are liable for the same act (joint tortfeasors) or tortfeasors who separately contribute to the same damage – each is liable for the whole of that damage.  As between any particular tortfeasor and the Claimant no question of apportionment arises (leaving aside the question of contributory negligence).  The classic statement is that of Devlin LJ in Dingle v Associated Newspapers Ltd [1961] 2 QB 162, at p 189….

17. We have said that those rules should apply to compensation for the statutory tort of discrimination “other things being equal”.  Mr. Clayton was not able to suggest any special features of the law of discrimination which required a different approach, nor can we see any.  It is our view, therefore, that the Tribunal had no power to conduct the exercise which the Council claims that it should have conducted.  It is not, for the avoidance of doubt, being said that it should have apportioned liability on the basis that the Claimant’s loss was divisible, i.e. that different acts of discrimination as between the Council Respondents and the HARE Respondents caused different damage: Ms. White, through whom the Council was liable, was party to all the acts complained of.  Rather, what Mr. Clayton on behalf of the Council seeks is an apportionment of liability on the basis of the Council Respondents’ and the HARE Respondents’ relative degrees of responsibility for the Claimant’s loss.  That submission is misconceived: as explained above, the relative responsibility of the tortfeasors may be relevant to contribution as between them but it is not relevant to their liability, in a case like the present, to the claimant.”

 

41.         We respectfully agree especially as Mr de Mello could not show any flaws in this reasoning or in the subsequent statement of Underhill P with the emphasis as in the original that:-

 

“22… Although Way v Crouch appear to rely on the 1978 Act that is, with respect a red herring: as we have sought to explain, the Act has no bearing on the liability of concurrent tortfeasors to the claimant.”

 

42.         The position therefore is that  the Court of Appeal by implication in Gilbank and this Appeal Tribunal in Munchkins and Sivanandan have held that the reasoning in Way is wrong as it seeks to apply the 1978 Act not merely to claims between tortfeasors but to the liability of concurrent tortfeasors to a claimant. We consider that we must follow these cases rather than Way and the time might well have come when Way should no longer be relied on or even cited as accurately representing the law.

 

43.         In the liability decision, the Employment Tribunal held that the Appellants conducted a course of action together in relation to Mr Chandel.  The position was not different in the case of Mr Saini because of what was said by the Employment Appeal Tribunal in a passage, which we quoted in paragraph 11 above.

 

44.         The significant fact of it was the way in which it was explained that the acts concerned were those of the Appellants in the present case.  In those circumstances we are quite satisfied that the Employment Tribunal was quite correct to impose joint and separate liability without apportionment upon the Appellants,

 

Was the Tribunal wrong in law to have regard to post-employment conduct in assessing aggravated damages?

45.         The approach of the Employment Tribunal was that in assessing the aggravated damages, it was appropriate in this case to take account of the Appellants’ post-employment conduct.  The Employment Tribunal explained that the Appellants made complaints to the West Midlands Police that each of the Respondents had been guilty of obtaining property by deception and these allegations were not made until some considerable time after the Respondents had been dismissed and after they had brought proceedings against the Appellants in the Employment Tribunal.

 

46.         The Employment Tribunal explained that as a result of the Appellants’ complaints, the Respondents were both arrested and then subjected to “humiliating procedures” of being held in the cells, and then having their finger prints and DNA taken and it considered that this was a “considerable embarrassment” to the Respondents and was “distressing and humiliating” for them before they were released without charge.  Mr Saini not surpassingly described his arrest and detention as “a deeply galling experience”.  The Employment Tribunal held that it could be taken into account in assessing the aggravated damages what it regarded as a “malicious complaint to the police which had been made without foundation”.

 

47.         The case for the Appellant is that no aggravated damages were permissible but as we have explained this is not a ground in respect of which the Appellants have been given permission to pursue. It is also said that a claim for damages under Regulation 21 was not pleaded but that was not in the ground of appeal.

 

48.         The grounds of appeal are that the Employment Tribunal:-

i.                 Erred in law in making an award of aggravated damages in relation to both Respondents on the grounds of post-employment treatment because the Appellants did not discriminate against the Respondents under Regulation 12 and to award damages on this basis for the acts of the police, who exercised an original jurisdiction is wrong in principle;

ii.               There was no relevant relationship between the Appellants as directors of the Centre and the Respondents, and no findings were made in relation to that relationship. In addition the arrests of the Respondents by the police were an independent exercise of power under which the Appellants’ complaints made to them about the Respondents and which led to their arrests came about outside the scope of their employment relationship, and were therefore outside the scope of Regulation 21;

iii.             To award the Respondents damages in this context was to make an award of damages for false imprisonment for which the Appellants were not directly responsible because the false imprisonment was brought about by the police.  For there to be a false imprisonment, there normally has to be some positive act of the party committing the wrong but no such positive act existed here;

iv.              The Respondents had a separate cause of action namely to sue the Appellants for malicious falsehood or false imprisonment if the facts justified this course rather than for the Employment Tribunal to make an award for what was in effect false imprisonment or malicious falsehood.  Those torts do not extend to disciplinary proceedings and therefore there was no reason why the Employment Tribunal should award damages for malicious falsehood or false imprisonment under Regulation 21;

v.                Regulation 31(3) did not confer jurisdiction on the Employment Tribunal to award aggravated damages separately from and additionally to damages for injuries to feelings;

vi.              There is no evidence to support the finding that the Appellants made malicious allegations to the police and any assertions of false criminal allegations attract the remedy of wrongful arrest or malicious prosecution which allow for an award of aggravated damages.  Thus the Employment Tribunal took into account an irrelevant factor in awarding aggravated damages and the award was accordingly wrong in principle as the arrest and detention of the Respondents by the police are not matters capable of a remedy under Regulation 31(3); and that

vii.            Any allegation of falsehood advanced by a party must be specifically pleaded and provided with cogent evidence but that has not occurred here.

 

49.         It is necessary to remember that the Employment Tribunal awarded aggravated damages on the basis of the high-handed manner in which the Appellants conducted the disciplinary hearings, which were then compounded by making a subsequent unfounded and malicious complaint to the police, which resulted in the arrest and detention of the Respondents.

 

50.         The Employment Tribunal in the remedies hearing found a very clear connection between the discriminatory behaviour of the Appellants during the Respondents’ employment and their conduct in making subsequent unfounded malicious complaint to the police. As we have explained, this resulted in the arrest of the Respondents and them being subjected to the humiliating procedure of being held in the cells with their finger prints and DNA taken and not surprisingly this was a matter of considerable embarrassment and hurt to the Respondents.  So far as Mr Saini was concerned, the Employment Tribunal  in the remedies judgment explained that it was established  in the liability hearing that the Appellants were:-

 

“prime movers in the manner in which the Centre’s disciplinary process was subverted in order to promote a discriminatory anti-Hindu policy. The fact that that policy was then continued after the termination of the employment relationship through the malicious allegations of dishonesty against Mr Saini demonstrated to the Tribunal that there had been a causal link between the two events which had directly involved the [appellants]”. (paragraph 7.15)

 

51.         So far as Mr Chandel is concerned, the Employment Tribunal explained that he had been arrested and had been fingerprinted and held in a cell which it describes as “a malicious act by [the appellants] which perpetuated the campaign which they had initiated during the period of Mr Chandel’s employment”  (paragraph 8.12).

 

52.         Thus the conclusion of the Employment Tribunal was that there was a causal link between the discriminatory behaviour of the Appellants to the Respondents during their employment and their subsequent complaint to the police leading to the arrest of both Respondents.

 

53.         A clear answer to the grounds of the Appellant is that there is authority that post-dismissal behaviour can lead to an aggravated award.  Thus in  Zaiwalla & Co v Walia [2002] IRLR 697 Maurice Kay LJ sitting in this Appeal Tribunal explained that:-

 

24... Indeed, there is a very good policy reason for allowing such a claim in an appropriate discrimination case. If a respondent misconducts himself in the defence of a discrimination case, it may amount to victimisation of the applicant in respect of the protected act of bringing the claim. It is easy to imagine cases in which the misconduct amounting to victimisation might only arise at a late stage of the proceedings, perhaps only during the hearing. It seems to us that it would be regrettable if such victimisation could only be compensated by the commencement of further proceedings. In the field of discrimination law there are already too many cases that give rise to multiple proceedings and satellite litigation. In the sort of case which we are considering here, it is preferable that, where there is misconduct of sufficient gravity, it is compensated by the Tribunal which is seised of the matter and which has the feel for the aggravating material and its effect.”

 

54.         The decision in that case was that the Employment Tribunal was entitled to award aggravated damages to the claimant to take account of the way in which his employer had defended proceedings.  It also showed that contrary to Mr de Mello’s contention the fact that the employee had an alternative remedy in the form of a claim for malicious prosecution or false imprisonment was not a reason for not awarding aggravated damages.

 

55.         In the case of The Governing Body of St Andrew’s Primary School v Blundell [UKEAT/0330/09] this Appeal Tribunal took a similar view when holding that it was proper for the Employment Tribunal to take account of the way in which the hearing had been conducted justified an increase in the compensation payable.

 

56.         We agree with Miss Donnelly first that there is no rule of law which restricts the circumstances in which aggravated damages may be awarded and second that there is no justification for refusing to award damages where as in the present case a campaign of discrimination is continued after the employment has ceased.  Indeed, it is preferable that these matters should be dealt with within the ambit of the discrimination proceedings in front of the Employment Tribunal who were familiar with the previous history rather than being pursued separately in further litigation.  We therefore are unable to accept any of the complaints made on behalf of the Appellants.

 

57.         For all those reasons we have come to the conclusion that this appeal must be dismissed.


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