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Apportionment of Liability in Discrimination Cases

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[Thanks to Laurie Anstis of Boyes Turner, who is standing in for Daniel Barnett. Thanks also to Robert Dickason of Outer Temple Chambers for preparing this case summary]

Can the employment tribunal determine claims for contribution brought under the Civil Liability (Contribution) Act 1978 as between parties jointly or concurrently liable for unlawful discrimination? No, held the EAT (Underhill P) in Brennan & ors v Sunderland CC . Firstly, because the provisions in the Sex Discrimination Act 1975 and other discrimination legislation do not confer jurisdiction to hear them. Secondly, and more fundamentally, because the 1978 Act did not extend the right to claim contribution to the world of tribunals: it is a cause of action confined to 'ordinary courts' (so High Court discrimination claims are fine).

On a second issue, the tribunal had been entitled to order the disclosure of a settlement agreement concluded between the claimants and the union respondents. It was possible that sums had been paid by the unions to the claimants in respect of the same act of discrimination being alleged against the local authority which had sought disclosure. Those sums were relevant to the level of damages which the local authority might be liable to pay.