Brian Gegg

In Baldwin v Cleves School and others, the EAT has recently held that an Employment Tribunal does not have any discretion to excuse individual employees from liability if the conditions set out in section 110 are satisfied. 

Ms Baldwin was employed by Cleves School as a newly qualified teacher. Shortly after starting work, she made the school aware that she was undergoing medical tests and that there was a possible diagnosis of multiple sclerosis. Around six months later, in response to a number of incidents involving the headteacher and a colleague, Ms Baldwin resigned. She then brought a claim for disability discrimination against the school and against the headteacher and her colleague as individual respondents. 

The Employment Tribunal upheld Ms Baldwin’s disability discrimination claim, ruling that the school was vicariously liable for two discriminatory acts of the headteacher and her colleague. However, the Tribunal held that her colleagues were not personally liable under section 110 of the Equality Act. The Tribunal described their actions as misguided but concluded that they had been trying to address a complex situation, and that their main failing had been not obtaining HR advice in good time. 

The EAT has now upheld Ms Baldwin’s appeal, ruling that the Tribunal had been wrong to exercise any discretion in respect of whether her colleagues were personally liable. Just because an employer is held to be vicariously liable does not mean that a Tribunal can then decide that an individually named employee respondent has no liability. Where the conditions of section 110 of the Equality Act are satisfied, as they were in this case, an individual should be found liable, and a Tribunal has no power to apply any discretion in order to excuse them. The EAT therefore substituted a finding that the headteacher and Ms Baldwin’s colleague were in breach of the Equality Act.

This case highlights that individual employees may have personal liability in discrimination cases. Crucially, where the statutory conditions are met, an Employment Tribunal has no discretion to rule that individuals have no personal liability. The only exception to this would be if the individual had been told by their employer that the discriminatory act was lawful, and they reasonably believed this to be true. Although Tribunals can award compensation against individual respondents, in practice employers will usually agree to pay this where appropriate. It is also important to note that employers may avoid a finding of vicarious liability for the discriminatory acts of employees if they have taken all reasonable steps to prevent the discrimination from occurring, for example, by implementing robust policies and procedures and providing regular specialised training.