EMPLOYEES PERSONALLY RESPONSIBLE
In Barlow v Stone (2012 IRLR 898) the Employment Appeal Tribunal had to decide whether an employee could bring a discrimination claim against a colleague even though no claim had been made against the employer.
Barlow brought a claim against his employer alleging disability discrimination under the Disability Discrimination Act 1995 (DDA), including a failure to make reasonable adjustments. Later a fellow employee (Stone) made a complaint to the police about Barlow, alleging abusive and threatening behaviour – an allegation which turned out to be false.
Barlow then presented a second complaint to an employment tribunal, against Stone, alleging discrimination by way of victimisation (in other words, being treated less favourably because he had alleged disability discrimination).
In the second claim, Barlow indicated that he also intended to present a further claim for victimisation against his employer on the basis that the employer and Stone were jointly liable; but, in fact, no claim against the employer relating to this issue was ever lodged. The tribunal dismissed the victimisation claim on the basis that Stone – the sole respondent – was not Barlow’s employer but a fellow employee.
Barlow appealed to the EAT. He argued that under the DDA he could present a claim just against Stone because the relevant sections of the legislation, read together, provide that employees can be liable for their own discriminatory actions.The logic (admittedly a bit legally long-winded) goes as follows:
- employees can complain that another employee has discriminated against them;
- an employer is liable for any unlawful act committed by an employee during the course of employment;
- employees become personally liable if they “knowingly aid” an employer to discriminate unlawfully.
Barlow’s appeal was upheld. The EAT ruled that the legislation specifically provides that a tribunal has jurisdiction to hear a claim against an employee who knowingly aids an unlawful act. Therefore, as employees can be personally liable for discrimination, there was a viable claim against Stone.
Furthermore, a freestanding discrimination claim could be brought directly by one employee against another, even though no tribunal claim is lodged against their employer, as there is nothing in the wording of the legislation requiring the employer to also be cited as a respondent.
While this case was brought under the DDA 1995, the same principle applies under the Equality Act 2010. This takes a more direct approach, making it clear that an employee is personally liable for unlawful acts committed in the course of employment where the employer would also be liable. The implications for employers are two-fold.
First, the law allows claims not just against employees and their employer, but also against individual employees. This ‘personal liability’ message should be part of awareness training for all staff so that they realise the potential consequences of discriminatory acts. If the ethical case for zero tolerance on discrimination does not convince staff, then perhaps having to pay compensation out of their own pockets will do the trick.
Second, it has often been the case in the past that individual employees are cited in claims as well as employers, because the employer can escape liability by successfully mounting the defence of having taken all reasonable steps to prevent discrimination or harassment occurring.The logic is that if the employer ‘gets off the hook’, the tribunal may order the successful claimant’s work colleague to pay compensation. The practical issue is whether employers will indemnify their employees against any compensation awarded, or whether it will be a case of “you’re on your own with this one”.