Can an employee be found not personally liable for an act of discrimination when the employer is found liable?

What is vicarious liability?

‘Vicarious liability’ means that, usually, employers are responsible for discriminatory actions by their employees if they occur during employment. However, employees can also be personally responsible for discrimination. Claimants can bring certain discrimination claims against both their employer and the individual employees involved.

Baldwin v Cleves School and others

The Employment Appeal Tribunal (EAT) looked at whether a tribunal could find an employer liable for discrimination done by certain employees, but then decide those employees were not personally liable.

The Claimant accused her employer (let’s call them BigCorp) and two individual employees (we’ll call them Jo and Charlie) of direct disability discrimination.

The tribunal found BigCorp guilty of discrimination because of actions taken by Jo and Charlie. However, they decided that Jo and Charlie weren’t personally liable, saying their actions were a misguided attempt to handle a complex situation.

The EAT disagreed and said that Jo and Charlie should also be held liable for the discrimination, along with BigCorp. The only way employees wouldn’t be liable for discriminatory actions, if BigCorp was liable, would be if BigCorp had told them that their actions were legal, and they reasonably believed that. Which wasn’t the case here.

Their actions were already considered to be discriminatory, making both the employer and the employees liable.

To avoid a situation like this, check that your Staff Handbook has clearly outlined what types of behaviour will not be tolerated at work.  Also make sure there are clear guidelines for people who may be having work issues and where to get help, so that they don’t feel the need to handle complex issues by themselves.  We’d be happy to help you review your Staff Handbook.