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Discrimination: Liability of Individuals

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Should a tribunal, after finding claims of disability discrimination against an employer were proven, have also found the employees who carried-out the discriminatory conduct were personally liable for discrimination?

Yes, held the Employment Appeal Tribunal in Baldwin v Cleves School and others.

The Claimant brought claims of direct disability discrimination and discrimination arising from a disability against her employer (R1) and also against two individual employees of R1 (R2 and R3). The tribunal found R1 liable for disability discrimination based on the conduct of R2 and R3. However, the tribunal went on to conclude that R2 and R3 should not be held liable for disability-related harassment on an individual basis as their acts were a misguided attempt to deal with a complex situation. 

The EAT disagreed and substituted a finding that R2 and R3 were liable (as well as R1) for disability discrimination. The only way an employee will not be liable for discriminatory conduct where the employer has been found liable for it, is if they have been told by the employer that the act is lawful and they reasonably believe this to be true. This exception did not apply in this case. 

The tribunal had found that R2 and R3’s actions amounted to disability discrimination in the course of their employment. They had held R1, as their employer, liable for this conduct under the principles of vicarious liability. They had no discretion to then look at the conduct again when deciding whether R2 and R3 were liable as individuals and look-upon it differently. They had already found that the conduct was discriminatory.