Do employees have a personal responsibility for acts of discrimination?

The case of Baldwin -v- (1) Cleves School; (2) Mr C Hodges; and (3) Ms S Miller [2024] EAT 66

Section 109, of the Equality Act 2010 (“EqA”) makes employers and principals liable for acts of discrimination, harassment and victimisation carried out by their employees in the course of employment. It does not matter whether the employer or principal knows about or approves those acts. This type of liability is otherwise known as vicarious liability.

Section 110 of the EqA makes employees personally liable for unlawful acts committed in the course of employment in situations where the employer is also liable under section 109 of the EqA or would be but for the defence of having taken all reasonable steps to prevent the employee from doing the relevant thing.

Background

Miss Baldwin was employed by Cleves School, the First Respondent, as a Newly Qualified Teacher (“NQT”) from September 2014 until the date of her resignation on 18 March 2015.

On joining Cleves School, Miss Baldwin immediately informed them of her condition, Fibromyalgia, a condition that often causes stiffness, cognitive problems and widespread pain.

Miss Baldwin had also been diagnosed with Guillain-Barre syndrome, PCOS and received a tentative diagnosis of Nutcracker Syndrome but at the time of accepting her offer of employment, these conditions were in abeyance. Miss Baldwin was considered to be disabled for the purposes of the EqA.

At the time of her employment, Miss Baldwin had not completed her PGCE due to submitting some assessments late, caused by ill-health.

After starting at Cleves School, Miss Baldwin was required to complete a form ‘NQT induction year’. This requires the NQT to meet the statutory Teacher Standards. During the first term of her induction year, Miss Baldwin had several absences due to illness.

Miss Baldwin alleged that during her employment, Mr Hodges, (Headteacher), who was  and Ms Miller (), , asked her and her PGCE mentor various inappropriate and unlawful questions about the status of her health and whether she was a danger to children.

Miss  Baldwin resigned and brought a claim of direct disability discrimination, discrimination arising from disability, failure to make reasonable adjustments, harassment related to disability and victimisation against Cleves School, Mr Hodges (“Second Respondent”) and Ms Miller (“Third Respondent”).

Employment Tribunal Hearing

Employment Judge M Emery upheld Miss Baldwin’s claim of direct disability discrimination and discrimination arising from disability in relation to her claims against Cleves School, but dismissed her claims of failure to make reasonable adjustments, harassment related to disability and victimisation, in addition to all claims against made directly against Mr Hodges and Ms Miller.

The Tribunal found two cases of direct discrimination on behalf of Cleves School. Firstly, a request made by Ms Miller to Miss Baldwin’s PGCE tutor for Miss Baldwin’s medical information. The Tribunal stated that such a request would not have been sent to a non-disabled NQT’s PGCE tutor and therefore, this amounted to an act of less favourable treatment because of her disabilities. Secondly, an NQT report on Miss Baldwin prepared by Mr Hodges stating that Miss Baldwin had “not acted with integrity at all times.”

 Appeal Hearing

Miss Baldwin appealed the findings of the Employment Tribunal (“ET”) with respect to no findings being made against the individual respondents, Mr Hodges and Ms Miller.

Michael Ford KC, Deputy Judge of the High Court overruled the ET’s findings and allowed Miss Baldwin’s appeal in respect to the claims made against the two individual respondents under s.110 of the EqA.

Michael Ford KC held:

“The only conclusions open to the ET were to find that there was a contravention of section 110 of the EqA (i) by the Third Respondent in respect of the act of disability discrimination which the ET found proven against the school and (ii) by the Second Respondent in respect of the complaint of discrimination arising from disability which the ET found proven against the School.”

Final Comments

This recent Judgment serves as an important reminder that named respondents can be held personally liable for their own acts of discrimination committed during the course of employment under section 110 EqA even if  their employer has been held vicariously liable under section 109 EqA. For further information or to discuss a potential employment law or discrimination claim, please contact our specialist employment solicitors on 0207 3950 5234 or info@rllaw.co.uk. We are ranked as a ‘Leading Firm’ in the Legal 500 and Chambers and Partners independent guides to the UK Legal Profession.

– Friday 11 July 2024